EXHIBIT 99.1
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FOURTH AMENDED AND RESTATED LOAN AGREEMENT
Dated as of October 25, 2002
by and among
XXXX TELEVISION, INC.,
as Borrower;
THE FINANCIAL INSTITUTIONS SIGNATORY HERETO,
as Lenders;
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent for the Lenders
with
WACHOVIA SECURITIES, INC.,
and
BANC OF AMERICA SECURITIES LLC
as Co-Lead Arrangers and
Joint Book Managers
AND
Bank of America, N.A.
as Syndication Agent
AND
Deutsche Bank Trust Company Americas,
as Documentation Agent
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FOURTH AMENDED AND RESTATED
LOAN AGREEMENT
among
XXXX TELEVISION, INC.,
as Borrower;
THE FINANCIAL INSTITUTIONS SIGNATORY HERETO,
as Lenders;
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent for the Lenders;
BANK OF AMERICA, N.A.,
as Syndication Agent;
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Documentation Agent
INDEX
Page
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ARTICLE 1 DEFINITIONS 2
Section 1.1 Defined Terms...............................................................................................2
Section 1.2 Interpretation.............................................................................................27
Section 1.3 Cross References...........................................................................................27
Section 1.4 Accounting Provisions......................................................................................27
ARTICLE 2 LOANS AND LETTERS OF CREDIT 28
Section 2.1 The Loans..................................................................................................28
Section 2.2 Manner of Borrowing and Disbursement.......................................................................28
Section 2.3 Interest...................................................................................................31
Section 2.4 Fees.......................................................................................................33
Section 2.5 Mandatory Commitment Reductions............................................................................34
Section 2.6 Voluntary Commitment Reductions............................................................................35
Section 2.7 Prepayments and Repayments.................................................................................35
Section 2.8 Notes; Loan Accounts.......................................................................................38
Section 2.9 Manner of Payment..........................................................................................38
Section 2.10 Reimbursement..............................................................................................40
Section 2.11 Pro Rata Treatment.........................................................................................41
Section 2.12 Capital Adequacy...........................................................................................41
Section 2.13 Lender Tax Forms...........................................................................................42
Section 2.14 Letters of Credit..........................................................................................42
Section 2.15 Incremental Facility Loans.................................................................................47
ARTICLE 3 CONDITIONS PRECEDENT 49
Section 3.1 Conditions Precedent to Effectiveness of Agreement.........................................................49
Section 3.2 Conditions Precedent to Each Advance.......................................................................52
Section 3.3 Conditions Precedent to Issuance of Letters of Credit......................................................53
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ARTICLE 4 REPRESENTATIONS AND WARRANTIES 54
Section 4.1 Representations and Warranties.............................................................................54
Section 4.2 Survival of Representations and Warranties, etc............................................................62
ARTICLE 5 GENERAL COVENANTS 63
Section 5.1 Preservation of Existence and Similar Matters..............................................................63
Section 5.2 Business; Compliance with Applicable Law...................................................................63
Section 5.3 Maintenance of Properties..................................................................................63
Section 5.4 Accounting Methods and Financial Records...................................................................63
Section 5.5 Insurance..................................................................................................64
Section 5.6 Payment of Taxes and Claims................................................................................64
Section 5.7 Compliance with ERISA......................................................................................64
Section 5.8 Visits and Inspections.....................................................................................66
Section 5.9 Payment of Indebtedness; Loans.............................................................................66
Section 5.10 Use of Proceeds............................................................................................66
Section 5.11 Indemnity..................................................................................................67
Section 5.12 Interest Rate Hedging......................................................................................67
Section 5.13 Covenants Regarding Formation of Subsidiaries and Acquisitions; Partnership, Subsidiaries..................68
Section 5.14 Payment of Wages...........................................................................................68
Section 5.15 Further Assurances.........................................................................................68
Section 5.16 License Subs...............................................................................................69
Section 5.17 Maintenance of Network Affiliations; Operating Agreements..................................................69
Section 5.18 Ownership Reports..........................................................................................69
Section 5.19 Environmental Compliance and Indemnity.....................................................................69
ARTICLE 6 INFORMATION COVENANTS 71
Section 6.1 Quarterly Financial Statements and Information.............................................................71
Section 6.2 Annual Financial Statements and Information................................................................71
Section 6.3 Monthly Financial Information..............................................................................72
Section 6.4 Performance Certificates...................................................................................72
Section 6.5 Copies of Other Reports....................................................................................72
Section 6.6 Notice of Litigation and Other Matters.....................................................................73
ARTICLE 7 NEGATIVE COVENANTS 74
Section 7.1 Indebtedness of the Borrower and its Subsidiaries..........................................................74
Section 7.2 Limitation on Liens........................................................................................76
Section 7.3 Amendment and Waiver.......................................................................................76
Section 7.4 Liquidation, Merger or Disposition of Assets...............................................................76
Section 7.5 Limitation on Guaranties...................................................................................77
Section 7.6 Investments and Acquisitions...............................................................................77
Section 7.7 Restricted Payments; Restricted Purchases..................................................................79
Section 7.8 Senior Leverage Ratio......................................................................................80
Section 7.9 Interest Coverage Ratio....................................................................................81
INTEREST COVERAGE RATIO 81
Section 7.10 Fixed Charge Coverage Ratio................................................................................81
Section 7.11 Leverage Ratio.............................................................................................81
Period 81
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Section 7.12 Affiliate Transactions.....................................................................................81
Section 7.13 Real Estate................................................................................................81
Section 7.14 ERISA Liabilities..........................................................................................82
Section 7.15 No Limitation on Upstream Dividends by Subsidiaries........................................................82
ARTICLE 8 DEFAULT 82
Section 8.1 Events of Default..........................................................................................82
Section 8.2 Remedies...................................................................................................86
Section 8.3 Payments Subsequent to Declaration of Event of Default.....................................................87
ARTICLE 9 THE ADMINISTRATIVE AGENT 88
Section 9.1 Appointment and Authorization..............................................................................88
Section 9.2 Interest Holders...........................................................................................88
Section 9.3 Consultation with Counsel..................................................................................88
Section 9.4 Documents..................................................................................................89
Section 9.5 Administrative Agent and Affiliates........................................................................89
Section 9.6 Responsibility of the Administrative Agent and the Issuing Bank............................................89
Section 9.7 Action by the Administrative Agent and the Issuing Bank....................................................89
Section 9.8 Notice of Default or Event of Default......................................................................90
Section 9.9 Responsibility Disclaimed..................................................................................90
Section 9.10 Indemnification............................................................................................91
Section 9.11 Credit Decision............................................................................................91
Section 9.12 Successor Administrative Agent.............................................................................92
Section 9.13 Delegation of Duties.......................................................................................92
Section 9.14 Co-Lead Arrangers; Syndication Agent; Documentation Agent..................................................92
ARTICLE 10 CHANGE IN CIRCUMSTANCES AFFECTING LIBOR ADVANCES 92
Section 10.1 LIBOR Basis Determination Inadequate or Unfair.............................................................92
Section 10.2 Illegality.................................................................................................93
Section 10.3 Increased Costs............................................................................................93
Section 10.4 Effect On Other Advances...................................................................................94
Section 10.5 Claims for Increased Costs and Taxes.......................................................................95
ARTICLE 11 MISCELLANEOUS 95
Section 11.1 Notices....................................................................................................95
Section 11.2 Expenses...................................................................................................96
Section 11.3 Waivers....................................................................................................97
Section 11.4 Set-Off....................................................................................................97
Section 11.5 Assignment.................................................................................................98
Section 11.6 Accounting Principles.....................................................................................102
Section 11.7 Counterparts..............................................................................................102
Section 11.8 Governing Law.............................................................................................102
Section 11.9 Severability..............................................................................................103
Section 11.10 Interest..................................................................................................103
Section 11.11 Table of Contents and Headings............................................................................103
Section 11.12 Amendment and Waiver......................................................................................103
Section 11.13 Entire Agreement..........................................................................................104
Section 11.14 Other Relationships.......................................................................................104
Section 11.15 Directly or Indirectly....................................................................................104
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Section 11.16 Reliance on and Survival of Various Provisions............................................................104
Section 11.17 Senior Debt...............................................................................................105
Section 11.18 Obligations Several.......................................................................................105
Section 11.19 Survival of Indemnities...................................................................................105
Section 11.20 Term of Agreement.........................................................................................105
Section 11.21 Advice of Counsel.........................................................................................105
Section 11.22 No Strict Construction....................................................................................105
ARTICLE 12 WAIVER OF JURY TRIAL 106
Section 12.1 Waiver of Jury Trial......................................................................................106
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EXHIBITS
Exhibit A - Form of Assignment and Assumption Agreement
Exhibit B - Form of Borrower Pledge Agreement
Exhibit C - Form of Borrower Security Agreement
Exhibit D - Form of Certificate of Financial Condition
Exhibit E - Form of Request for Advance
Exhibit F - Form of Request for Issuance of Letter of Credit
Exhibit G-1 - Form of Revolving Loan Note
Exhibit G-2 - Form of Term Loan Note
Exhibit G-3 - Form of Incremental Facility Note
Exhibit H - Form of Subsidiary Guaranty
Exhibit I - Form of Subsidiary Pledge Agreement
Exhibit J - Form of Subsidiary Security Agreement
Exhibit K-1 - Form of Borrower Loan Certificate
Exhibit K-2 - Form of Subsidiary Loan Certificate
Exhibit L - Form of Acquisition Certificate
Exhibit M - Form of Performance Certificate
Exhibit N-1 - Form of Assignment of General Partner Interests
Exhibit N-2 - Form of Assignment of Limited Partner Interests
Exhibit O - Form of Notice of Incremental Facility Commitment
SCHEDULES
Schedule 1 Lender's Commitment Ratios and Notice Addresses
Schedule 2 Liens
Schedule 3 Stations, Newspapers, Porta-Phone Paging Business, Satellite
Broadcasting Business, Operating Agreements and Licenses
Schedule 4 Subsidiaries
Schedule 5 Litigation
Schedule 6 Affiliate Transactions
Schedule 7 Indebtedness
Schedule 8 Trademarks, Patents, Copyrights
Schedule 9 Labor Matters
Schedule 10 Environmental Matters
Schedule 11 Real Property
Schedule 12 Existing Letters of Credit
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FOURTH AMENDED AND RESTATED LOAN AGREEMENT
THIS FOURTH AMENDED AND RESTATED LOAN AGREEMENT (this "Agreement") is
entered into as of this 25(th) day of October, 2002 by and among XXXX
TELEVISION, INC. (formerly known as Xxxx Communications Systems, Inc.), a
Georgia corporation (the "Borrower"), THE FINANCIAL INSTITUTIONS SIGNATORY
HERETO (the "Lenders"), WACHOVIA BANK, NATIONAL ASSOCIATION (formerly known as
First Union National Bank), as administrative agent (the "Administrative
Agent"), and Bank of America, N.A., as Syndication Agent,
W I T N E S S E T H:
WHEREAS, pursuant to the Third Amended and Restated Loan Agreement
dated as of September 25, 2001 (as amended by the First Amendment to the Third
Amended and Restated Loan Agreement dated as of September 4, 2002, the "Prior
Loan Agreement"), by and among the Borrower, the lenders party thereto (the
"Prior Lenders"), Bank of America, N.A., as administrative agent (the "Prior
Administrative Agent") and First Union National Bank, as syndication agent, the
Prior Lenders extended certain credit facilities to the Borrower pursuant to the
terms thereof; and
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lenders consent to certain amendments to the Prior Loan Agreement, as more
fully set forth in this Agreement; and
WHEREAS, the Administrative Agent and the Lenders have agreed to amend
and restate the Prior Loan Agreement, as more fully set forth in this Agreement;
and
WHEREAS, the Borrower acknowledges and agrees that the security
interest granted to the Prior Administrative Agent, for itself and on behalf of
the Prior Lenders pursuant to the Prior Loan Agreement and the Security
Documents (as defined in the Prior Loan Agreement) executed in connection
therewith, shall remain outstanding and in full force and effect in accordance
with the Prior Loan Agreement and shall continue to secure the Obligations (as
hereinafter defined); and
WHEREAS, the Borrower acknowledges and agrees that: (i) the Obligations
(as hereinafter defined) represent, among other things, the amendment,
restatement, renewal, extension, consolidation and modification of the
Obligations (as defined in the Prior Loan Agreement) arising in connection with
the Prior Loan Agreement and the other Security Documents executed in connection
therewith; (ii) the parties hereto intend that the Prior Loan Agreement and the
Security Documents, executed in connection therewith and the collateral pledged
thereunder, shall secure, without interruption or impairment of any kind, all
existing Indebtedness under the Prior Loan Agreement and the Security Documents,
executed in connection therewith, as so amended, restated, restructured,
renewed, extended, consolidated and modified hereunder, together with
Obligations (as hereinafter defined), (iii) all Liens evidenced by the Prior
Loan Agreement and the Security Documents, executed in connection therewith are
hereby ratified, confirmed and continued; and (iv) the Loan Documents (as
hereinafter defined) are intended to restructure, restate, renew, extend,
consolidate, amend and modify the Prior Loan Agreement and the Security
Documents, executed in connection therewith; and
WHEREAS, the parties hereto intend that (i) the provisions of the Prior
Loan Agreement and the other Security Documents executed in connection
therewith, to the extent restructured, restated, renewed, extended,
consolidated, amended and modified hereby, are hereby superseded and replaced by
the provisions hereof and of the Loan Documents; and (ii) the Notes (as
hereinafter defined) amend, renew, extend, modify, replace, are substituted for
and supersede in their entirety, but do not extinguish the indebtedness arising
under, the promissory notes issued pursuant to the Prior Loan Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby amend and restate the Prior Loan Agreement as follows:
ARTICLE 1
Definitions
Section 1.1 Defined Terms. The following terms when used in this
Agreement shall have the following meanings:
"Acquisition" shall mean (whether by purchase, lease, exchange,
issuance of stock or other equity or debt securities, merger, reorganization or
any other method) (a) any acquisition by the Borrower or any Subsidiary of the
Borrower of any other Person, which Person shall then become consolidated with
the Borrower or any such Subsidiary in accordance with GAAP; (b) any acquisition
by the Borrower or any Subsidiary of the Borrower of all or substantially all of
the assets of any other Person; or (c) any other acquisition by the Borrower or
any Subsidiary of the Borrower of the assets of another Person which acquisition
is not in the ordinary course of business for the Borrower or such Subsidiary.
"Adjusted Total Debt" shall mean, as of any date, the difference
between (a) Total Debt as of such date minus (b) the aggregate amount of the
Borrower's cash then on hand, not to exceed $10,000,000.
"Administrative Agent" shall mean Wachovia Bank, National Association,
a national banking association, in its capacity as Administrative Agent for the
Lenders or any successor Administrative Agent appointed pursuant to Section 9.12
hereof.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at Syndication Agency Services, Xxxxxxxxx Xxxxx,
XX-0, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000, or such other office
as may be designated pursuant to the provisions of Section 11.1 hereof.
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"Advance" shall mean amounts advanced by the Lenders to the Borrower
pursuant to Article 2 hereof on the occasion of any borrowing and having the
same Interest Rate Basis and Interest Period; and "Advances" shall mean more
than one Advance.
"Affiliate" shall mean, with respect to a Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
such first Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. "Affiliate" shall also
mean any beneficial owner of Ownership Interests representing ten percent (10%)
or more of the total voting power of such Ownership Interests (on a fully
diluted basis) of the Borrower or of rights or warrants to purchase such
Ownership Interests (whether or not currently exercisable) and any Person who
would be an Affiliate of any such beneficial owner pursuant to the first
sentence hereof. Unless otherwise specified, "Affiliate" shall mean an Affiliate
of the Borrower.
"Agreement" shall mean this Fourth Amended and Restated Loan Agreement,
as amended, supplemented, restated or otherwise modified from time to time.
"Agreement Date" shall mean the date as of which this Agreement is
dated.
"Applicable Law" shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations and orders of governmental bodies
or regulatory agencies applicable to such Person, including, without limitation,
the Communications Act, zoning ordinances and all Environmental Laws, and all
orders, decisions, judgments and decrees of all courts and arbitrators in
proceedings or actions to which the Person in question is a party or by which it
is bound.
"Applicable Margin" shall mean the interest rate margin applicable to
Base Rate Advances and LIBOR Advances, as the case may be, in each case
determined in accordance with Section 2.3(f) hereof (or, with respect to
Incremental Facility Loans, as set forth in the Notice of Incremental Facility
Commitment).
"Approved Fund" means any Person (other than a natural Person),
including, without limitation, any special purpose entity, that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business;
provided, that with respect to any assignment of any Revolving Loan Commitment,
such Approved Fund must be administered by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or manages
a Lender.
"Asset Sale" shall mean the sale, lease, transfer or other disposition
by the Borrower or any of its Subsidiaries to any Person of any of the stock,
partnership interests or other equity interests of any Subsidiary or any other
assets of the Borrower or any Subsidiary.
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"Assignment and Assumption Agreement" shall mean any Assignment and
Assumption Agreement substantially in the form of Exhibit A attached hereto
pursuant to which any Lender, as further provided in Section 11.5 hereof, sells
a portion of its Commitments and/or Loans.
"Assignment of General Partner Interests" shall mean any Assignment of
General Partner Interests between the Borrower or any of its Subsidiaries, on
the one hand, and the Administrative Agent, on the other hand, or any supplement
thereto or confirmation thereof, in form and substance satisfactory to the
Administrative Agent, or any similar agreement substantially in form of Exhibit
N-1 attached hereto.
"Assignment of Limited Partner Interests" shall mean any Assignment of
Limited Partner Interests between the Borrower or any of its Subsidiaries, on
the one hand, and the Administrative Agent, on the other hand, or any supplement
thereto or confirmation thereof, in form and substance satisfactory to the
Administrative Agent, or any similar agreement substantially in the form of
Exhibit N-2 attached hereto.
"Authorized Signatory" shall mean such senior personnel of a Person as
may be duly authorized and designated in writing from time to time by such
Person to execute documents, agreements and instruments on behalf of such
Person.
"Available Letter of Credit Commitment" shall mean, at any time, the
lesser of (a) (i) $20,000,000.00, minus (ii) all Letter of Credit Obligations
then outstanding, and (b) (i) the Available Revolving Loan Commitment.
"Available Revolving Loan Commitment" shall mean, as of any date, (a)
the Revolving Loan Commitment in effect on such date minus (b) the sum of (i)
the aggregate amount of all Letter of Credit Obligations then outstanding and
(ii) the Revolving Loans then outstanding.
"Base Rate" shall mean, at any time, a fluctuating interest rate per
annum equal to the higher of (a) the rate of interest quoted from time to time
by the Administrative Agent as its "prime rate" or "base rate" or (b) the
Federal Funds Rate plus one-half of one percent (1/2%). The Base Rate is not
necessarily the lowest rate of interest charged by the Administrative Agent in
connection with extensions of credit.
"Base Rate Advance" shall mean an Advance which the Borrower requests
to be made as or converted to a Base Rate Advance, in accordance with the
provisions of Section 2.2 hereof, and which shall be in a principal amount of at
least $500,000.00, and in an integral multiple of $250,000.00.
"Base Rate Basis" shall mean a simple interest rate equal to the sum of
(a) the Base Rate and (b) the Applicable Margin applicable to Base Rate
Advances. The Base Rate Basis shall be adjusted automatically as of the opening
of business on the effective date of each change in the Base Rate to account for
such change, and shall also be adjusted to reflect changes of the Applicable
Margin applicable to Base Rate Advances.
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"BBC" shall mean Benedek Broadcasting Corporation, a Delaware
corporation and wholly-owned Subsidiary of SHC.
"Borrower" shall mean Xxxx Television, Inc. (formerly known as Xxxx
Communications Systems, Inc.), a Georgia corporation.
"Borrower Pledge Agreement" shall mean, collectively, that certain
Amended and Restated Borrower Pledge Agreement dated as of the Agreement Date by
and between the Borrower and the Administrative Agent, or any supplement thereto
or confirmation thereof, in form and substance satisfactory to the
Administrative Agent, or any other similar agreement substantially in the form
of Exhibit B attached hereto, pursuant to which the Borrower has pledged to the
Administrative Agent, for itself and on behalf of the Lenders, all of the
Borrower's Ownership Interests in any of its Subsidiaries existing on the
Agreement Date or formed or acquired by the Borrower after the Agreement Date.
"Borrower Security Agreement" shall mean, collectively, that certain
Amended and Restated Borrower Security Agreement dated as of the Agreement Date
by and between the Borrower and the Administrative Agent, or any supplement
thereto or confirmation thereof, in form and substance satisfactory to the
Administrative Agent, or any other similar agreement substantially in the form
of Exhibit C attached hereto.
"Business Day" shall mean a day on which banks and foreign exchange
markets are open for the transaction of business required for this Agreement in
Charlotte, North Carolina, Atlanta, Georgia and London, England, as relevant to
the determination to be made or the action to be taken.
"Capital Expenditures" shall mean any payments by the Borrower or any
of its Subsidiaries for or in connection with the rental, lease, purchase,
construction or use of any real or personal property, the value or cost of
which, under GAAP, should be capitalized and appear on the Borrower's or such
Subsidiary's balance sheet in the category of property, plant or equipment,
without regard to the manner in which such payments or the instrument pursuant
to which they are made are characterized by the Borrower or such Subsidiary or
any other Person; provided, however, that neither (a) the capitalized portion of
the purchase price payable in connection with any Acquisition permitted
hereunder, nor (b) expenditures of proceeds of insurance policies reasonably and
promptly applied to replace insured assets, shall constitute a Capital
Expenditure for purposes of this Agreement.
"Capitalized Lease Obligation" shall mean that portion of any
obligation of a Person as lessee under a lease which at the time would be
required to be capitalized on the balance sheet of such lessee in accordance
with GAAP.
"Capital Stock" means corporate stock and any and all securities,
shares, partnership interests (whether general, limited, special or other),
limited liability company interests, membership interests, equity interests,
participations, rights or other equivalents (however designated) of corporate
stock or any of the foregoing issued by any entity (whether a corporation, a
partnership, a limited liability company or another entity) and includes,
without
5
limitation, securities convertible into Capital Stock and rights, warrants or
options to acquire Capital Stock.
"Cash Equivalents" shall mean, as of any date of determination, (a)
marketable securities (i) issued or directly and unconditionally guaranteed as
to interest and principal by the United States government or (ii) issued by any
agency of the United States government the obligations of which are backed by
the full faith and credit of the United States of America, in each case maturing
within one (1) year after such date; (b) marketable direct obligations issued by
any state of the United States or any political subdivision of any such state or
any public instrumentality thereof, in each case maturing within one (1) year
after such date and having, at the time of the acquisition thereof, the highest
rating obtainable from either Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc., or Xxxxx'x Investors Service, Inc.; (c) commercial
paper, money-market funds and business savings accounts issued by corporations,
each of which shall have a combined net worth of at least $100,000,000.00 and
each of which conducts a substantial part of its business in the United States,
maturing within two hundred seventy (270) days from the date of the original
issue thereof, and rated "P-2" or better by Xxxxx'x Investors Service, Inc. or
"A-2" or better by Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc.; (d) certificates of deposit or bankers' acceptances
maturing within one (1) year after such date and issued or accepted by any
Lender or by any commercial bank organized under the laws of the United States
or any state thereof or the District of Columbia that (i) is at least
"adequately capitalized" (as defined in the regulations of its primary Federal
banking regulator) and (ii) has Tier 1 capital (as defined in the regulations)
of not less than $100,000,000.00; and (e) shares of any money market mutual fund
that (i) has at least ninety-five percent (95%) of its assets invested
continuously in the types of investments referred to in clauses (a), (b) and (c)
above, (ii) has net assets of not less than $500,000,000.00, and (iii) has the
highest rating obtainable from either Standard & Poor's Ratings Group, a
division of The XxXxxx-Xxxx Companies, Inc., or Xxxxx'x Investors Service, Inc.
"Certificate of Financial Condition" shall mean a certificate dated the
Agreement Date, substantially in the form of Exhibit D attached hereto, signed
by the chief financial officer of the Borrower, together with any schedules,
exhibits or annexes appended thereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Co-Lead Arrangers" shall mean each of Wachovia Securities, Inc. and
Banc of America Securities LLC.
"Collateral" shall mean any property of any kind constituting
collateral for the Obligations under any of the Security Documents.
"Commercial Letter of Credit" shall mean a documentary letter of credit
issued in respect of the purchase of goods or services by the Borrower or its
Subsidiaries by the Issuing Bank in accordance with the terms hereof.
6
"Commitments" shall mean, collectively, the Revolving Loan Commitment,
the Term Loan Commitment and, as applicable, the Incremental Facility
Commitments; and "Commitment" shall mean any of the foregoing Commitments.
"Commitment Ratio" shall mean, with respect to any Lender for any
Commitment, the percentage equivalent of the ratio which such Lender's portion
of such Commitment (or, in the case of the Term Loan after the Agreement Date,
such Lender's portion of such Loan) bears to the aggregate amount of such
Commitment or Loan, as the case may be (as each may be adjusted from time to
time as provided herein); and "Commitment Ratios" shall mean, with respect to
any Commitment, the Commitment Ratios of all of the Lenders with respect to such
Commitment. As of the Agreement Date, the Commitment Ratios of the Lenders party
to this Agreement are as set forth on Schedule 1 attached hereto.
"Communications Act" shall mean the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations of the FCC
thereunder, all as the same may be in effect from time to time.
"Continue", "Continuation" and "Continued" shall mean the continuation
pursuant to Article 2 hereof of a LIBOR Advance as a LIBOR Advance from one
Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall mean a conversion
pursuant to Article 2 hereof of a LIBOR Advance into a Base Rate Advance or of a
Base Rate Advance into a LIBOR Advance, as applicable.
"Debt Service" shall mean, for any period, the amount of all principal
paid or required to be paid and Interest Expense of the Borrower and its
Subsidiaries on a consolidated basis in respect of Indebtedness of the Borrower
and its Subsidiaries (other than voluntary principal payments of the Revolving
Loans which are not required to be accompanied by an identical reduction in the
Revolving Loan Commitment).
"Default" shall mean any Event of Default, and any of the events
specified in Section 8.1 hereof, regardless of whether there shall have occurred
any passage of time or giving of notice, or both, that would be necessary in
order to constitute such event as an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to the
sum of (a) the applicable Base Rate Basis and (b) two percent (2%).
"Documentation Agent" shall mean Deutsche Bank Trust Company Americas,
in its capacity as documentation agent hereunder.
"Eligible Assignee" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is at the
time of such assignment (a) a commercial bank organized under the laws of the
United States or any state thereof, having combined capital and surplus in
excess of $500,000,000, (b) a commercial bank organized under the laws of any
other country that is a member of the Organization of Economic Cooperation and
Development, or a
7
political subdivision of any such country, having combined capital and surplus
in excess of $500,000,000, (c) a finance company, insurance company or other
financial institution which in the ordinary course of business extends credit of
the type extended hereunder and that has total assets in excess of
$1,000,000,000, (d) already a Lender hereunder (whether as an original party to
this Agreement or as the assignee of another Lender), (e) the successor (whether
by transfer of assets, merger or otherwise) to all or substantially all of the
commercial lending business of the assigning Lender, (f) any Affiliate of an
assigning Lender, (g) any Approved Fund or (h) any other Person that has been
approved in writing as an Eligible Assignee by the Borrower (other than upon the
occurrence and during the continuance of any Default or Event of Default) and
the Administrative Agent.
"Employee Pension Plan" shall mean any Plan which is maintained by the
Borrower, any of its Subsidiaries or any ERISA Affiliate.
"Environmental Claim" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any governmental authority or
any other Person, arising (a) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, (b) in connection with any Hazardous
Materials or any actual or alleged Hazardous Materials Activity, or (c) in
connection with any actual or alleged damage, injury, threat or harm to health,
safety, natural resources or the environment.
"Environmental Laws" shall mean all applicable federal, state or local
laws, statutes, rules, regulations or ordinances, codes, common law, consent
agreements, orders, decrees, judgments or injunctions issued, promulgated,
approved or entered thereunder relating to public health, safety or the
pollution or protection of the environment, including, without limitation, those
relating to releases, discharges, emissions, spills, leaching, or disposals to
air, water, land or ground water, to the withdrawal or use of ground water, to
the use, handling or disposal of polychlorinated biphenyls, asbestos or urea
formaldehyde, to the treatment, storage, disposal or management of hazardous
substances (including, without limitation, petroleum, crude oil or any fraction
thereof, or other hydrocarbons), pollutants or contaminants, to exposure to
toxic, hazardous or other controlled, prohibited, or regulated substances,
including, without limitation, any such provisions under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. ss. 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C.
ss. 1801 et seq.), the Resource Conservation and Recovery Act of 1976, as
amended (42 U.S.C. ss. 6901 et seq.), the Federal Water Pollution Control Act
(33 U.S.C. ss. 1251 et seq.), the Clean Air Act (42 U.S.C. ss. 7401 et seq.),
the Toxic Substances Control Act (15 U.S.C. ss. 2601 et seq.), the Federal
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. ss. 136 et seq.), the
Occupational Safety and Health Act (29 U.S.C. ss. 651 et seq.), the Oil
Pollution Act (33 U.S.C. ss. 2701 et seq.) and the Emergency Planning and
Community Right-to-Know Act (42 U.S.C. ss. 11001 et seq.), each as amended or
supplemented, any analogous present or future state or local statutes or laws,
and any regulations promulgated pursuant to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as in effect from time to time.
8
"ERISA Affiliate" shall mean any Person, including a Subsidiary or an
Affiliate of the Borrower, that is a member of any group of organizations of
which the Borrower is a member and which is covered by a Plan.
"Event of Default" shall mean any of the events specified in Section
8.1 hereof, provided that any requirement for notice or lapse of time, or both,
has been satisfied.
"Excess Cash Flow" shall mean, as of the end of any fiscal year of the
Borrower based on the audited financial statements provided under Section 6.2
hereof for such fiscal year, the excess, if any, without duplication, of (a) the
sum of (i) Operating Cash Flow for such fiscal year, and (ii) any decrease in
the Borrower's working capital account during such fiscal year (excluding cash
and Cash Equivalents from current assets for such working capital account
determination), minus (b) the sum of the following: (i) Capital Expenditures by
the Borrower and its Subsidiaries during such fiscal year; (ii) Debt Service for
such fiscal year; (iii) cash taxes paid by the Borrower and its Subsidiaries
during such fiscal year; (iv) Restricted Payments or Restricted Purchases made
during such fiscal year which are permitted under Section 7.7 hereof; (v) any
increase in the Borrower's working capital account during such fiscal year
(excluding cash and Cash Equivalents from current assets for such working
capital account determination); and (vi) $5,000,000.00; in each case, as
determined in accordance with GAAP.
"Excess Offering Proceeds" shall mean an amount equal to the gross cash
proceeds actually received by the Borrower from any equity offering of the
Borrower made on or after the Agreement Date on terms and conditions reasonably
satisfactory to the Co-Lead Arrangers in excess of the Target Equity Amount;
provided that the amount of Excess Offering Proceeds shall be reduced, on a
dollar for dollar basis, by the amount of any Excess Offering Proceeds that are
used (a) to repay Indebtedness, (b) to fund all or any portion of any
Acquisition or Investment, or (c) to fund any Restricted Payment or Restricted
Purchase.
"Existing Letters of Credit" shall mean all letters of credit issued by
Bank of America, N.A. under the Prior Loan Agreement and outstanding on the
Agreement Date and set forth on Schedule 12 attached hereto.
"FCC" shall mean the Federal Communications Commission and any
successor or substitute governmental commission, agency, department, board or
authority performing functions similar to those performed by the Federal
Communications Commission on the date hereof.
"FCC License" shall mean any license required under the Communications
Act or from the FCC.
"FCC Regulations" shall mean all rules, regulations, written policies,
orders and decisions of the FCC under the Communications Act.
"Federal Funds Rate" shall mean, the rate per annum (rounded upwards,
if necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or
9
any successor or substitute publication selected by the Administrative Agent.
If, for any reason, such rate is not available, then "Federal Funds Rate" shall
mean a daily rate which is determined, in the opinion of the Administrative
Agent, to be the rate at which federal funds are being offered for sale in the
national federal funds market at 9:00 a.m. (Charlotte, North Carolina time).
Rates for weekends or holidays shall be the same as the rate for the most
immediately preceding Business Day.
"Fed Regulations" shall have the meaning ascribed thereto in Section
4.1(n) hereof.
"Final Bankruptcy Court Order" shall mean the order or judgment of the
United States Bankruptcy Court for the District of Delaware confirming the
Second Amended Plan of Reorganization filed by SHC on August 9, 2002 with the
United States Bankruptcy Court for the District of Delaware pursuant to Section
1129 of the Bankruptcy Code, which has not been reversed, stayed, modified, or
amended, and as to which the time to appeal or seek certiorari has expired and
no appeal or petition for certiorari has been timely taken, or as to which any
appeal that has been taken or any petition for certiorari that has been or may
be filed has been resolved by the highest court to which the order or judgment
was appealed or from which certiorari was sought.
"Fixed Charge Coverage Ratio" shall mean (a) on and prior to December
31, 2002, the ratio of (i) Operating Cash Flow for the quarter then ended or
most recently ended to (ii) Fixed Charges for the quarter then ended or most
recently ended; (b) as of March 31, 2003 through and including June 29, 2003,
the ratio of (i) Operating Cash Flow for the two (2) quarter period then ended
or most recently ended to (ii) Fixed Charges for the two (2) quarter period then
ended or most recently ended; (c) as of June 30, 2003 through and including
September 29, 2003, the ratio of (i) Operating Cash Flow for the three (3)
quarter period then ended or most recently ended to (ii) Fixed Charges for the
three (3) quarter period then ended or most recently ended; and (d) on September
30, 2003 and thereafter, the ratio of (i) Operating Cash Flow for the four (4)
quarter period then ended or most recently ended to (ii) Fixed Charges for the
four (4) quarter period then ended or most recently ended.
"Fixed Charges" shall mean, as of any date, the sum of (a) all Interest
Expense, (b) all required principal payments of Revolving Loans made pursuant to
scheduled Revolving Commitment reductions under Section 2.5(a), (c) all required
principal payments due on the Term Loan made pursuant to scheduled Term Loan
repayments under Section 2.7(b)(i), (d) all principal payments required to be
made by the Borrower and its Subsidiaries on Total Debt (other than the Loans),
(e) Capital Expenditures made by the Borrower and its Subsidiaries, (f) any
federal, state or local income taxes paid in cash by the Borrower or any of its
Subsidiaries, (g) any purchases of common stock of the Borrower by the Borrower
or any of its Subsidiaries, in each case, for or during the quarter then ended
or most recently ended, plus (h) dividends made by the Borrower and its
Subsidiaries in respect of the Ownership Interests of the Borrower or such
Subsidiary (excluding dividends made in such Ownership Interests). For purposes
of calculating the Fixed Charge Coverage Ratio as of any date, Fixed Charges
shall exclude actual HDTV Capital Expenditures (A) in an amount not to exceed
$30,000,000.00 in the aggregate from the Agreement Date to the Maturity Date and
(B) in an amount not to exceed $20,000,000.00 in any fiscal year.
10
"GAAP" shall mean, as in effect from time to time, generally accepted
accounting principles in the United States, consistently applied.
"Guaranty" or "Guaranteed," as applied to an obligation, shall mean and
include (a) a guaranty, direct or indirect, in any manner, of all or any part of
such obligation, and (b) any agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limitation, any reimbursement
obligations as to amounts drawn down by beneficiaries of outstanding letters of
credit or capital call requirements.
"Xxxxxx Agreement" shall mean that certain Exclusive Master Purchasing
Agreement dated as of September 25, 2000 between the Borrower and Xxxxxx
Corporation d/b/a Xxxxxx Broadcast Communications Division, as existing on the
Agreement Date.
"Hazardous Materials" shall mean (a) any chemical, material or
substance at any time defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous
waste," "acutely hazardous waste," "radioactive waste," "biohazardous waste,"
"pollutant," "toxic pollutant," "contaminant," "restricted hazardous waste,"
"infectious waste," "toxic substances," or any other term or expression intended
to define, list or classify substances by reason of properties harmful to
health, safety or the indoor or outdoor environment (including, without
limitation, harmful properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, "TCLP toxicity" or "EP
toxicity" or words of similar import under any applicable Environmental Laws);
(b) any oil, petroleum, petroleum fraction or petroleum derived substance; (c)
any drilling fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas or geothermal
resources; (d) any flammable substances or explosives; (e) any radioactive
materials; (f) any asbestos-containing materials; (g) urea formaldehyde foam
insulation; (h) electrical equipment which contains any oil or dielectric fluid
containing polychlorinated biphenyls; (i) pesticides; and (j) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority or which may or could pose a hazard to
the health and safety of the owners, occupants or any Persons in the vicinity of
any Real Property or to the indoor or outdoor environment.
"Hazardous Materials Activity" shall mean any past, current, proposed
or threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HDTV Capital Expenditures" shall mean Capital Expenditures made in
connection with mandated conversion to digital television broadcasting,
including, without limitation, the purchase of transmission, distribution,
studio and antenna equipment and transmission site modifications, including
construction and modification of towers.
11
"Incremental Facility Advance" shall mean an Advance made by any Lender
holding an Incremental Facility Commitment pursuant to Section 2.15 hereof.
"Incremental Facility Commitment" shall mean the commitment of any
Lender or Lenders to make advances to the Borrower in accordance with Section
2.15 hereof (the Borrower may obtain Incremental Facility Commitments from more
than one Lender, which commitments shall be several obligations of each such
Lender); and "Incremental Facility Commitments" shall mean the aggregate of the
Incremental Facility Commitments of each Lender.
"Incremental Facility Commitment Ratios" shall mean percentages in
which the Lenders holding an Incremental Facility Commitment are severally bound
to fund their respective portions of Advances to the Borrower under the
Incremental Facility Commitments which are set forth in the Notice of
Incremental Facility Commitment.
"Incremental Facility Loans" shall mean the amounts advanced by the
Lenders holding an Incremental Facility Commitment to the Borrower as
Incremental Facility Loans under the Incremental Facility Commitment, and
evidenced by the Incremental Facility Notes.
"Incremental Facility Maturity Date" shall mean that date specified in
the Notice of Incremental Facility Commitment as the maturity date of an
Incremental Facility Loan.
"Incremental Facility Notes" shall mean those certain Incremental
Facility Notes described in Section 2.15 hereof.
"Indebtedness" shall mean, with respect to any Person as of any date,
all liabilities, obligations and reserves, contingent or otherwise, which, in
accordance with GAAP, would be reflected as a liability on a balance sheet
(excluding trade accounts payable and accrued expenses arising in the ordinary
course of business), including, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind,
(b) all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all obligations of such Person upon which interest
charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to assets
purchased by such Person, (e) all obligations of such Person issued or assumed
as the deferred purchase price of property or services, (f) all obligations of
others secured by (or for which the holder of such obligations has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the obligations secured thereby have
been assumed by such Person, (g) all obligations or liabilities otherwise
constituting Indebtedness under this definition Guaranteed by such Person, (h)
all Capitalized Lease Obligations of such Person, (i) all net payment
obligations incurred by any such Person pursuant to Interest Rate Hedge
Agreements, and (j) all obligations of such Person as an account party to
reimburse any Person in respect of letters of credit (including, without
limitation, the Letters of Credit) or bankers' acceptances. The Indebtedness of
any Person shall include any recourse Indebtedness of any partnership in which
such Person is a general partner.
12
"Indemnitee" shall have the meaning ascribed thereto in Section 5.11
hereof.
"Interest Coverage Ratio" shall mean (a) on and prior to December 31,
2002, the ratio of (i) Operating Cash Flow for the quarter then ended or most
recently ended to (ii) Interest Expense for the quarter then ended or most
recently ended; (b) as of March 31, 2003 through and including June 29, 2003,
the ratio of (i) Operating Cash Flow for the two (2) quarter period then ended
or most recently ended to (ii) Interest Expense for the two (2) quarter period
then ended or most recently ended; (c) as of June 30, 2003 through and including
September 29, 2003, the ratio of (i) Operating Cash Flow for the three (3)
quarter period then ended or most recently ended to (ii) Interest Expense for
the three (3) quarter period then ended or most recently ended; and (d) on
September 30, 2003 and thereafter, the ratio of (i) Operating Cash Flow for the
four (4) quarter period then ended or most recently ended to (ii) Interest
Expense for the four (4) quarter period then ended or most recently ended.
"Interest Expense" shall mean, for any period, the gross interest
expense accrued by the Borrower and its Subsidiaries in respect of their
Indebtedness for such period, net of interest income for such period, determined
on a consolidated basis, all fees payable under Section 2.4 or any fee letter of
the Borrower executed in connection with this Agreement, and any other fees,
charges, commissions and discounts in respect of Indebtedness, including,
without limitation, any fees payable in connection with the Letters of Credit,
but excluding deferred finance charges all calculated in accordance with GAAP.
For purposes of the foregoing, gross interest expense shall be determined after
giving effect to any net payments made or received by the Borrower with respect
to Interest Rate Hedge Agreements.
"Interest Period" shall mean (a) in connection with any Base Rate
Advance, the period beginning on the date such Advance is made as or Converted
to a Base Rate Advance and ending on the last day of the fiscal quarter in which
such Advance is made or as Converted to a Base Rate Advance, provided, however,
that if a Base Rate Advance is made or Converted on the last day of any fiscal
quarter, it shall have an Interest Period ending on, and its Payment Date shall
be, the last day of the following fiscal quarter, and (b) in connection with any
LIBOR Advance, the term of such Advance selected by the Borrower or otherwise
determined in accordance with this Agreement. Notwithstanding the foregoing,
however, (i) any applicable Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding Business
Day unless, with respect to LIBOR Advances only, such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (ii) any applicable Interest Period, with respect to
LIBOR Advances only, which begins on a day for which there is no numerically
corresponding day in the calendar month during which such Interest Period is to
end shall (subject to clause (i) above) end on the last day of such calendar
month, and (iii) the Borrower shall not select an Interest Period which extends
beyond the Maturity Date, or such earlier date as would interfere with the
Borrower's repayment obligations under Section 2.7 hereof. Interest shall be due
and payable with respect to any Advance as provided in Section 2.3 hereof.
"Interest Rate Basis" shall mean the Base Rate Basis or the LIBOR
Basis, as appropriate.
13
"Interest Rate Hedge Agreements" shall mean any agreement or other
arrangement of any Person with any other Person whereby, directly or indirectly,
such Person is entitled to receive from time to time periodic payments
calculated by applying either a floating or a fixed rate of interest on a stated
notional amount in exchange for periodic payments made by such Person calculated
by applying a fixed or a floating rate of interest on the same notional amount
and shall include, without limitation, interest rate swaps, caps, floors,
collars and similar agreements.
"Interest Rate Hedge Obligations" shall mean all existing and future
payments and other obligations owing by the Borrower under any Interest Rate
Hedge Agreements permitted hereunder with any Person that is a Lender or an
Affiliate thereof at the time such Interest Rate Hedge Agreement is executed.
"Investment" shall mean, with respect to the Borrower or any of its
Subsidiaries, (a) any loan, advance or extension of credit (other than to
customers in the ordinary course of business) by such Person to, or any Guaranty
or other contingent liability with respect to the capital stock, indebtedness or
other obligations of, or any contributions to the capital of, any other Person,
or any ownership, purchase or other acquisition by such Person of any interest
in any capital stock, limited partnership interests, general partnership
interest, or other securities of such other Person, other than an Acquisition,
(b) any Joint Sales Agreement, Local Marketing Agreement or Shared Services
Agreement entered into by such Person or any commitment, promise or agreement by
such Person to enter into any such agreement, and (c) all expenditures by the
Borrower or any of its Subsidiaries relating to the foregoing.
"Issuing Bank" shall mean (a) with respect to Letters of Credit issued
hereunder, Wachovia Bank, National Association, in its capacity as the issuer of
the Letters of Credit, or any successor issuer of the Letters of Credit, and (b)
with respect to the Existing Letters of Credit, Bank of America, N.A., in its
capacity as the issuer of the Existing Letters of Credit.
"Joint Sales Agreement" shall mean an agreement for the sale of
commercial or advertising time or any similar arrangement pursuant to which a
Person obtains the right to (a) sell at least a majority of the time for
commercial spot announcements, and/or resell to advertisers such time on, (b)
provide the sales staff for the sale of the advertising time or the collection
of accounts receivable with respect to commercial advertisements broadcast on,
(c) set the rates for advertising on and/or (d) provide the advertising material
for broadcast on, a television broadcast station the FCC License of which is
held by a Person other than an Affiliate of such Person.
"known to the Borrower" or "to the knowledge of the Borrower" shall
mean known by or reasonably should have been known by the executive officers of
the Borrower (including, without limitation, the chief executive officer,
president, the chief operating officer, if any, the chief financial officer, the
controller, the chief accounting officer or the general counsel of the
Borrower).
"Lenders" shall mean the Persons whose names appear as "Lenders" on the
signature pages hereof and any other Person which becomes a "Lender" hereunder
after the Agreement Date; and "Lender" shall mean any one of the foregoing
Lenders.
14
"Letter of Credit Obligations" shall mean, as of any date, the sum of
(a) an amount equal to the aggregate undrawn and unexpired amount (including the
amount to which any such Letter of Credit can be reinstated pursuant to the
terms hereof) of the then outstanding Letters of Credit and (b) an amount equal
to the aggregate drawn, but unreimbursed drawings on any Letters of Credit.
"Letters of Credit" shall mean either Standby Letters of Credit or
Commercial Letters of Credit issued by the Issuing Bank on behalf of the
Borrower or its Subsidiaries from time to time in accordance with the terms
hereof and shall include the Existing Letters of Credit.
"Leverage Ratio" shall mean, as of any date, the ratio of (a) Adjusted
Total Debt as of such date to (b) Operating Cash Flow for the four (4) quarter
period then ended or most recently ended.
"LIBOR" means, with respect to a particular Interest Period, the rate
of interest per annum determined on the basis of the rate for deposits in United
States Dollars in minimum amounts of at least $1,000,000.00 for a period equal
to the applicable Interest Period which appears on the Dow Xxxxx Market Screen
3750 at approximately 11:00 a.m. (London time) two (2) Business Days prior to
the first day of the applicable Interest Period (rounded upward, if necessary,
to the nearest 1/100th of 1%). If, for any reason, such rate does not appear on
Dow Xxxxx Market Screen 3750, then "LIBOR" shall be determined by the
Administrative Agent to be the arithmetic average of the rate per annum at which
deposits in United States Dollars in minimum amounts of at least $1,000,000.00
would be offered by first class banks in the London interbank market to the
Administrative Agent at approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of the applicable Interest Period for a period equal
to such Interest Period. Each calculation by the Administrative Agent of LIBOR
shall be conclusive and binding for all purposes, absent manifest error.
"LIBOR Advance" shall mean an Advance which the Borrower requests to be
made as, Continued as or Converted to a LIBOR Advance in accordance with the
provisions of Section 2.2 hereof, and which shall be in a principal amount of at
least $1,000,000.00 and in an integral multiple of $500,000.00.
"LIBOR Basis" shall mean a simple per annum interest rate (rounded
upward, if necessary, to the nearest one-hundredth (1/100th) of one percent
(1.0%)) equal to the sum of (a) the quotient of (i) the LIBOR divided by (ii)
one (1) minus the LIBOR Reserve Percentage, if any, stated as a decimal, plus
(b) the Applicable Margin. The LIBOR Basis shall apply to Interest Periods of
one (1), two (2), three (3), six (6), or, to the extent available to all
Lenders, twelve (12) months, and, once determined, shall remain unchanged during
the applicable Interest Period, except for changes to reflect adjustments in the
LIBOR Reserve Percentage and the Applicable Margin as adjusted pursuant to
Section 2.3(f) hereof. The LIBOR Basis for any LIBOR Advance shall be adjusted
as of the effective date of any change in the LIBOR Reserve Percentage and the
Applicable Margin. The Borrower may not elect an Interest Period in excess of
six (6) months unless the Administrative Agent has notified the Borrower that
each of the Lenders has funds available to it for such Lender's portion of the
proposed Advance which are not required for other purposes, and that such funds
are available to each Lender at a rate
15
(exclusive of reserves and other adjustments) at or below the LIBOR Basis for
such proposed Advance and Interest Period.
"LIBOR Reserve Percentage" means for any day that percentage (expressed
as a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, all basic,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements) for
a member bank of the Federal Reserve System in respect of Eurocurrency
Liabilities (as that term is defined in Regulation D of the Board of Governors
of the Federal Reserve System, as in effect from time to time). The LIBOR Rate
shall be adjusted automatically on and as of the effective date of any change in
the LIBOR Reserve Percentage.
"License" shall mean any license, authorization, permit, consent,
franchise, ordinance, registration, certificate, agreement or other right filed
with, granted by, or entered into by a federal, state or local governmental
authority which permits or authorizes the acquisition, construction or operation
of a television station or satellite broadcasting or portable phone paging
operation, or any part of a television station or satellite broadcasting or
portable phone paging operation, or which is required for the acquisition,
ownership or operation of any Station, any Newspaper, the Porta-Phone Paging
Business or the Satellite Broadcasting Business, including, without limitation,
the FCC Licenses.
"License Sub" shall mean each Subsidiary of the Borrower which has no
assets other than FCC Licenses.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, negative pledge or other agreement not to pledge, collateral assignment,
charge, security interest, title retention agreement, levy, execution, seizure,
attachment, garnishment or other encumbrance of any kind in respect of such
property, whether created by statute, contract, the common law or otherwise, and
whether or not xxxxxx, vested or perfected.
"Loan Documents" shall mean this Agreement, the Notes, the Security
Documents, all fee letters, all Requests for Advance, all Notices of Incremental
Facility Commitments, all compliance certificates issued by the Borrower or any
of its Subsidiaries and all other documents, agreements, supplements,
confirmations, instruments or certificates executed or delivered in connection
with or contemplated by this Agreement or any of the foregoing (excluding any
Interest Rate Hedge Agreement).
"Loans" shall mean, collectively, the Revolving Loans, the Term Loan,
and, if applicable, the Incremental Facility Loans.
"Local Marketing Agreement" shall mean a local marketing arrangement,
time brokerage agreement, management agreement or similar arrangement pursuant
to which a Person, subject to customary preemption rights and other limitations,
obtains the right to exhibit programming and sell advertising time during more
than fifteen percent (15%) of the air time of a television broadcast station
licensed to another Person.
16
"margin stock" shall have the meaning ascribed thereto in Section
4.1(n) hereof.
"Materially Adverse Effect" shall mean a material adverse effect upon
or change in (a) the properties, assets, business, operations, financial
condition or prospects of the Borrower or any of its Subsidiaries or on the
ability of the Borrower or any such Subsidiary to conduct its business, (b) the
ability of the Borrower, any of its Subsidiaries or any other party to a Loan
Document (other than the Administrative Agent or any Lender) to perform its
obligations hereunder or under any other Loan Document to which it is a party,
(c) the validity or enforceability of this Agreement, the Notes or any other
Loan Document, or (d) the rights or remedies of the Administrative Agent or the
Lenders under this Agreement, the Notes or any other Loan Document or at law or
in equity.
"Maturity Date" shall mean the Revolving Loan Maturity Date, the Term
Loan Maturity Date, or the Incremental Facility Maturity Date, as applicable.
"Merger" shall mean the merger of the Merger Subsidiary with and into
SHC pursuant to the terms of the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger dated as
of June 4, 2002, by and among the Borrower, SHC and the Merger Subsidiary, as
amended, supplemented or otherwise modified; provided that the Administrative
Agent shall have approved any material amendment, supplement or other
modification thereto.
"Merger Subsidiary" shall mean Xxxx MidAmerica Television, Inc., a
wholly-owned Subsidiary of the Borrower.
"Multiemployer Plan" shall mean a multiemployer pension plan as defined
in Section 3(37) of ERISA to which the Borrower, any of its Subsidiaries or any
ERISA Affiliate is or has been required to contribute.
"Necessary Authorizations" shall mean all approvals, consents and
licenses from, and all filings and registrations with, any governmental or other
regulatory authority, shareholder or other third party, including, without
limitation, all approvals, consents, Licenses, filings and registrations under
the Communications Act.
"Net Earnings" shall mean, as of any date with respect to the Borrower,
the consolidated net income (or deficit) of the Borrower and its Subsidiaries
for the period involved, after taxes accrued and after all proper charges and
reserves (excluding, however, non-recurring special charges and credits), all as
determined in accordance with GAAP.
"Net Proceeds (Asset Sales)" shall mean, with respect to any Asset Sale
by, or any insurance or condemnation proceeding in respect of any assets of, the
Borrower or any of its Subsidiaries, as applicable, the aggregate amount of cash
received for such assets (including, without limitation, any payments received
for non-competition covenants, any time brokerage, consulting or management fees
for services rendered on or prior to the consummation of such
17
sale (other than such fees received in the ordinary course of business for
brokerage, management or consulting services rendered after the consummation of
such sale in amounts usual and customary for the services rendered), and any
portion of the amount received evidenced by a promissory note or other evidence
of Indebtedness issued by the purchaser), net of (a) amounts reserved, if any,
for taxes payable with respect to any such sale (after application (assuming
application first to such reserves) of any available losses, credits or other
offsets), (b) reasonable and customary transaction costs properly attributable
to such transaction and payable by the Borrower or any of its Subsidiaries
(other than to an Affiliate) in connection with such Asset Sale, including,
without limitation, commissions, and (c) until actually received by the Borrower
or any of its Subsidiaries, any portion of the amount received held in escrow,
evidenced by a promissory note or other evidence of Indebtedness, or in respect
of a purchase or non-compete, consulting or management agreement or covenant or
otherwise for which compensation is paid over time. Upon receipt by the Borrower
or any of its Subsidiaries of (i) amounts referred to in item (c) of the
preceding sentence, or (ii) if there shall occur any reduction in the tax
reserves referred to in item (a) of the preceding sentence resulting in a
payment to the Borrower or its Subsidiaries, such amounts shall then be deemed
to be "Net Proceeds (Asset Sales)."
"Net Proceeds (Indebtedness)" shall mean, with respect to any sale,
issuance or other disposition of any Indebtedness of the Borrower or the
Borrower's Subsidiaries by the Borrower or the Borrower's Subsidiaries, the
difference between (a) the aggregate amount of cash or Cash Equivalents received
in connection with the sale, issuance or other disposition of such Indebtedness,
and (b) the aggregate amount of any reasonable and customary transaction costs
incurred in connection therewith, including, without limitation, all fees and
expenses of attorneys, accountants and other consultants, all underwriting or
placement agent fees, and fees and expenses of any trustee, registrar or
transfer agent.
"Newspapers" shall mean, as of any date, the newspapers owned or
operated by the Borrower or any of its Subsidiaries as of such date. As of the
Agreement Date, the Newspapers are set forth on Schedule 3 attached hereto.
"Non-US Lender" shall have the meaning ascribed thereto in Section
2.8(a) hereof.
"Notes" shall mean, collectively, the Revolving Loan Notes, the Term
Loan Notes, and, if applicable, the Incremental Facility Notes.
"Notice of Incremental Facility Commitment" shall mean the notice by
the Borrower of the Incremental Facility Commitment, which notice shall be
substantially in the form of Exhibit O attached hereto and shall be delivered to
the Administrative Agent and the Lenders.
"Obligations" shall mean all payment and performance obligations of
every kind, nature and description of the Borrower, its Subsidiaries, and any
other obligors to the Lenders, or the Administrative Agent, or any of them,
under this Agreement and the other Loan Documents (including any interest, fees
and other charges on the Loans or otherwise under the Loan Documents that would
accrue but for the filing of a bankruptcy action and including all Interest Rate
Hedge Obligations) as they may be amended from time to time, or as a result of
making the Loans, whether such obligations are direct or indirect, absolute or
contingent, due or not due,
18
contractual or tortious, liquidated or unliquidated, arising by operation of law
or otherwise, now existing or hereafter arising.
"Operating Agreement" shall mean any programming agreement, time
brokerage, local marketing or similar agreement, network affiliation agreement,
franchise agreement, lease or other agreement of the Borrower or any of its
Subsidiaries relating to the operation of a Station, a Newspaper, the
Porta-Phone Paging Business or the Satellite Broadcasting Business, the
termination or adverse modification of which could reasonably be expected to
have a Material Adverse Effect.
"Operating Cash Flow" shall mean, as of any date for any period, (a)
the Net Earnings for such period (excluding, to the extent included in Net
Earnings, (i) the effect of any exchange of advertising time for non-cash
consideration, such as merchandise or services, (ii) any other non-cash income
or expense (including the cumulative effect of a change in accounting principles
and extraordinary items) and (iii) any gains or losses from sales, exchanges and
other dispositions of property not in the ordinary course of business), minus
(b) any cash payments made in respect of Programming Obligations, plus (c) the
sum of (i) depreciation on or obsolescence of fixed or capital assets and
amortization of intangibles and leasehold improvements (including, without
limitation, amortization in respect of Programming Obligations) for such period,
plus (ii) Interest Expense in such period, plus (iii) federal, state and local
income taxes in such period to the extent deducted in calculating Net Earnings
in such period (other than any such taxes resulting from any gains from sales
and exchanges and other distributions not in the ordinary course of business),
plus (d) adjustments to actual historical Operating Cash Flow in connection with
any Acquisition permitted pursuant to Section 7.6; provided that such
adjustments are (i) consistent with Regulation S-X of the U.S. Securities and
Exchange Commission and (ii) approved by the Co-Lead Arrangers in their
reasonable business judgment, all on a consolidated basis and computed on the
accrual method. For purposes of calculating Operating Cash Flow in any period,
any Acquisition or Asset Sale which occurs during such period shall be deemed to
have occurred on the first day of such period.
"Ownership Interests" shall mean, as applied to any Person, any
ownership interests or Capital Stock of such Person, regardless of class or
designation, and all warrants, options, purchase rights, conversion or exchange
rights, voting rights, calls or claims of any character with respect thereto, or
any partnership interests, membership interest or other instruments or
securities evidencing ownership of such Person, as applicable.
"Ownership Reports" shall mean, with respect to any Station, the
reports and certifications filed with the FCC pursuant to 47 C.F.R. ss. 73.3615,
or any comparable reports filed pursuant to any successor regulation thereto.
"Participant" shall have the meaning assigned thereto in Section
11.5(f).
"Payment Date" shall mean the last day of any Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
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"Performance Certificate" shall have the meaning assigned thereto in
Section 6.4.
"Permitted Liens" shall mean, as applied to any Person:
(a) any Lien in favor of the Administrative Agent or any
Lender given to secure the Obligations;
(b) (i) Liens on real estate or other property for taxes,
assessments, governmental charges or levies not yet delinquent and (ii) Liens
for taxes, assessments, judgments, governmental charges or levies or claims the
non-payment of which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves have been set aside on such Person's
books in accordance with GAAP, but only so long as no forfeiture, foreclosure,
distraint, sale or similar proceedings have been commenced with respect thereto;
(c) statutory Liens of carriers, warehousemen, mechanics,
vendors, laborers and materialmen incurred in good faith in the ordinary course
of business for sums not yet due or being diligently contested in good faith, if
adequate reserves have been set aside on such Person's books in accordance with
GAAP, or appropriate provisions shall have been made therefor, and no
forfeiture, foreclosure, distraint, sale or similar proceedings have been
commenced with respect thereto;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance, social
security obligations, assessments or government charges which are not overdue
for more than sixty (60) days;
(e) restrictions on the transfer of assets of the
Borrower or its Subsidiaries imposed by the Communications Act and any
regulations thereunder;
(f) easements, rights-of-way, zoning restrictions,
leases, licenses, reservations or restrictions on use and other similar
encumbrances on the use of Real Property which do not materially interfere with
the ordinary conduct of the business of such Person or the use or value of such
property;
(g) (i) Liens reflected by Uniform Commercial Code
financing statements filed in respect of Capitalized Lease Obligations permitted
pursuant to Section 7.1(i) hereof and true leases of the Borrower or any of its
Subsidiaries and (ii) Liens securing Indebtedness permitted by Sections 7.1(c)
and 7.1(g) hereof;
(h) Liens to secure performance of statutory obligations,
surety or appeal bonds, performance bonds, bids, tenders or escrow deposits in
connection with Acquisitions and, in each case, in the ordinary course of
business;
(i) judgment Liens which do not result in an Event of
Default under Section 8.1(h) hereof;
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(j) Liens existing on the Agreement Date as set forth in
Schedule 2 hereof;
(k) Liens approved by the Administrative Agent and set
forth in any title policy insuring the interest of the Administrative Agent in
any Collateral, or set forth in title report, title examination or similar
document with respect to any of the Collateral; and
(l) Liens securing Indebtedness permitted by Section
7.1(m) hereof.
"Person" shall mean an individual, corporation, limited liability
company, association, partnership, joint venture, trust or estate, an
unincorporated organization, a government or any agency or political subdivision
thereof, or any other entity.
"Plan" shall mean an employee benefit plan within the meaning of
Section 3(3) of ERISA or any other employee benefit plan maintained for
employees of any Person or any affiliate of such Person.
"Planned Equity Offering" shall mean issuance of additional equity of
the Borrower in connection with the Merger and pursuant to the terms of the
Prospectus Supplement dated September 27, 2002.
"Porta-Phone Paging Business" shall mean, as of any date, the portable
telephone paging business owned or operated by the Borrower or any of its
Subsidiaries as of such date.
"Prior Administrative Agent" shall have the meaning assigned to such
term in the preamble hereto.
"Prior Lenders" shall have the meaning assigned to such term in the
preamble hereto.
"Prior Loan Agreement" shall have the meaning assigned to such term in
the preamble hereto.
"Programming Obligations" means all direct or indirect monetary
liabilities, contingent or otherwise, with respect to contracts for television
broadcast rights relating to television series or other programs produced or
distributed for television release.
"Purchasing Lender" shall have the meaning assigned thereto in Section
11.5(b).
"Qualified PIK Preferred Stock" shall mean preferred stock or other
junior securities of the Borrower that require dividends or interest to be
"paid-in-kind" by the issuance of like preferred stock or other junior
securities and do not require cash dividends or interest to be paid, in each
case, issued on terms and conditions acceptable to the Co-Lead Arrangers.
"Real Property" shall mean any and all real property (including all
buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by the Borrower or any of its
Subsidiaries or any of their respective predecessors or
21
Affiliates. The Real Property as of the Agreement Date is set forth on Schedule
11 attached hereto.
"Register" shall have the meaning ascribed thereto in Section 11.5(d)
hereof.
"Registered Notes" shall mean those certain Notes that have been issued
in registered form in accordance with Sections 2.8(a) and 11.5(g) hereof and
each of which bears the following legend: "This is a Registered Note, and this
Registered Note and the Loans evidenced hereby may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer on the Register and in compliance with all other requirements provided
for in the Loan Agreement."
"Release" shall mean any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including, without limitation, the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Hazardous
Materials), including the movement of any Hazardous Materials through the air,
soil, surface water or groundwater.
"Reno Acquisition" shall mean, the purchase by the Borrower of certain
assets pursuant to the terms of the Reno Acquisition Agreement.
"Reno Acquisition Agreement" shall mean the Asset Purchase Agreement
dated as of September 3, 2002, by and among Xxxxx Television Group, Inc. and
Xxxxx Television License Holdings, Inc., as seller, and the Borrower, as buyer,
as amended, supplemented or otherwise modified; provided that the Administrative
Agent shall have approved any material amendment, supplement or other
modification thereto.
"Reportable Event" shall mean, with respect to any Employee Pension
Plan, an event described in Section 4043(b) of ERISA.
"Request for Advance" shall mean a certificate designated as a "Request
for Advance," signed by an Authorized Signatory of the Borrower requesting an
Advance, Continuation or Conversion hereunder, which shall be in substantially
the form of Exhibit E attached hereto, and shall, among other things, (i)
specify the date of such Advance, Continuation or Conversion, which shall be a
Business Day, the amount and type of Advance (LIBOR or Base Rate), and, with
respect to LIBOR Advances, the Interest Period selected by the Borrower, (ii)
state that there shall not exist, on the date of the requested Advance and after
giving effect thereto, a Default or Event of Default, (iii) the Applicable
Margin then in effect, and (iv) designate the amount of the Revolving Loan
Commitments and, if applicable, the Incremental Facility Commitments, being
drawn.
"Request for Issuance of Letter of Credit" shall mean any certificate
signed by an Authorized Signatory of the Borrower requesting that the Issuing
Bank issue a Letter of Credit hereunder, which certificate shall be in
substantially the form of Exhibit F attached hereto and shall, among other
things, specify (a) that the requested Letter of Credit is either a Commercial
22
Letter of Credit or a Standby Letter of Credit, (b) the stated amount of the
Letter of Credit, (c) the effective date for the issuance of the Letter of
Credit (which shall be a Business Day), (d) the date on which the Letter of
Credit is to expire (which shall be a Business Day), (e) the Person for whose
benefit such Letter of Credit is to be issued, and (f) other relevant terms of
such Letter of Credit.
"Required Lenders" shall mean, at any time, the Lenders holding at
least fifty-one percent (51%) of the then aggregate unpaid principal amount of
the Loans, or, if no Loan is then outstanding, the Lenders having at least
fifty-one percent (51%) of the Commitments.
"Required Revolving Lenders" shall mean, at any time, the Lenders
holding at least fifty-one percent (51%) of the then aggregate unpaid principal
amount of the Revolving Loans, or, if no Revolving Loans are then outstanding,
the Lenders having at least fifty-one percent (51%) of the Revolving Loan
Commitment.
"Restricted Payment" shall mean (a) any direct or indirect
distribution, dividend or other payment to any Person (other than to the
Borrower or any of its Subsidiaries) on account of any Ownership Interests of
the Borrower or any of its Subsidiaries (other than dividends payable solely in
Ownership Interests of such Person and splits thereof), (b) any payment of
principal of, or interest on, or payment into a sinking fund for the retirement
of, or any defeasance of Subordinated Debt, or (c) any management, consulting or
similar fees, or any interest thereon, payable by the Borrower or any of its
Subsidiaries to any of their respective Affiliates (other than such fees and
interest payable to (i) the Borrower or any of its Subsidiaries or (ii) Bull Run
Corporation).
"Restricted Purchase" shall mean any payment (including, without
limitation, any sinking fund payment, prepayment or installment payment) on
account of the purchase, redemption, defeasance or other acquisition or
retirement of any Ownership Interests of or Subordinated Debt of the Borrower or
any of its Subsidiaries, including, without limitation, any warrants or other
rights or options to acquire shares of Ownership Interests of the Borrower or of
any of its Subsidiaries or any loan, advance, release or forgiveness of
Indebtedness by the Borrower or any of its Subsidiaries to any partner,
shareholder or Affiliate (other than to the Borrower or any of its Subsidiaries)
of any such Person.
"Revolving Loan Commitment" shall mean the several obligations of the
Lenders to fund their respective portion of the Revolving Loans to the Borrower
in accordance with their respective Commitment Ratios in the aggregate sum as of
the Agreement Date of up to $75,000,000.00, pursuant to the terms hereof, as
such obligations may be reduced from time to time pursuant to the terms hereof.
"Revolving Loan Maturity Date" shall mean December 31, 2009 or such
earlier date as payment of the Revolving Loans shall be due (whether by
acceleration, reduction of the Revolving Loan Commitment to zero or otherwise).
"Revolving Loan Notes" shall mean, collectively, those certain amended
and restated promissory notes in the aggregate original principal amount of
$75,000,000.00, and issued to
23
each of the Lenders by the Borrower with respect to the Revolving Loan
Commitment, each one substantially in the form of Exhibit G-1 attached hereto,
any other promissory note issued by the Borrower to evidence the Revolving Loans
pursuant to this Agreement, and any extensions, renewals or amendments to, or
replacements of, the foregoing.
"Revolving Loans" shall mean, collectively, those amounts advanced by
the Lenders to the Borrower under the Revolving Loan Commitment not to exceed
the Revolving Loan Commitment at any one time and evidenced by the Revolving
Loan Notes.
"Satellite Broadcasting Business" shall mean, as of any date, the
satellite broadcasting business owned or operated by the Borrower or any of its
Subsidiaries on such date.
"Security Documents" shall mean, collectively, the Borrower Pledge
Agreement, the Borrower Security Agreement, any Subsidiary Guaranty, any
Subsidiary Pledge Agreement, any Subsidiary Security Agreement, any Assignment
of General Partner Interests, any Assignment of Limited Partner Interests, any
other agreement or instrument providing Collateral for the Obligations whether
now or hereafter in existence, and any filings, instruments, agreements and
documents related thereto or to this Agreement, and providing the Administrative
Agent, for the benefit of the Lenders, with Collateral for the Obligations.
"Security Interest" shall mean, collectively, all Liens in favor of the
Administrative Agent, for the benefit of the Lenders, created hereunder or under
any of the Security Documents to secure the Obligations.
"Senior Debt" shall mean, as of any date, (a) Adjusted Total Debt on
such date minus (b) Subordinated Debt on such date.
"Senior Leverage Ratio" shall mean, as of any date, the ratio of (a)
Senior Debt as of such date to (b) Operating Cash Flow for the four (4) quarter
period then ended or most recently ended.
"Shared Services Agreement" shall mean a shared services arrangement or
other similar arrangement pursuant to which two Persons owning separate
television broadcast stations agree to share the costs of certain services and
procurements which they individually require in connection with the ownership
and operation of one television broadcast station, whether through the form of
joint or cooperative buying arrangements or the performance of certain functions
relating to the operation of one television broadcast station by employees of
the owner and operator of the other television broadcast station, including, but
not limited to, the co-location of the studio, non-managerial administrative
and/or master control and technical facilities of such television broadcast
station and/or the sharing of maintenance, security and other services relating
to such facilities.
"SHC" shall mean Stations Holding Company, Inc., a Delaware
Corporation.
24
"SHC Bankruptcy Case" shall mean the voluntary petition for relief
filed by SHC under chapter 11 of title 11 of the United States Code in the
United States Bankruptcy Court for the District of Delaware on March 22, 2002,
Case No. 02-10822.
"Standby Letter of Credit" shall mean a letter of credit issued to
support obligations of the Borrower or its Subsidiaries incurred in the ordinary
course of business, and which is not a Commercial Letter of Credit.
"Station" shall mean, collectively (a) each of the television stations
owned and operated by the Borrower and its Subsidiaries on the Agreement Date as
set forth in Schedule 3 attached hereto and (b) any television station acquired
after the Agreement Date by the Borrower or any of its Subsidiaries in
accordance herewith.
"Subordinated Debt" shall mean, as of any date, the sum of (a) all
Indebtedness of the Borrower and its Subsidiaries under the Subordinated Note
Indenture or any agreements, notes, instruments or documents executed or
delivered in connection therewith and (b) all other Indebtedness of the Borrower
the repayment of which is subordinated in right of payment to the Obligations
pursuant to a subordination agreement in form and substance satisfactory to the
Co-Lead Arrangers, in each case, as of such date.
"Subordinated Note Indenture" shall mean that certain Indenture dated
as of December 15, 2001 by and among the Borrower, all of its Subsidiaries and
Deutsche Bank Trust Company Americas formerly known as Bankers Trust Company in
respect of the Borrower's 9-1/4% Senior Subordinated Notes due 2011, as the same
may be amended from time to time to the extent permitted hereunder.
"Subsidiary" shall mean, as applied to any Person, (a) any corporation
of which more than fifty percent (50%) of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership or limited liability company of which more than fifty percent (50%)
of the outstanding partnership or ownership interests, is at the time owned
directly or indirectly by such Person, or by one or more Subsidiaries of such
Person, or by such Person and one or more Subsidiaries of such Person, or (b)
any other entity which is directly or indirectly controlled or capable of being
controlled by such Person, or by one or more Subsidiaries of such Person, or by
such Person and one or more Subsidiaries of such Person. "Subsidiaries" as used
herein shall mean the Subsidiaries of the Borrower, including SHC and its
Subsidiaries following the Merger, unless otherwise specified. The Subsidiaries
of the Borrower as of the Agreement Date are set forth on Schedule 4 hereto,
except as otherwise noted thereon.
"Subsidiary Guaranty" shall mean any Subsidiary Guaranty, in favor of
the Administrative Agent and the Lenders, given by each Subsidiary of the
Borrower, or any supplement thereto or confirmation thereof, in form and
substance satisfactory to the Administrative Agent, or any similar agreement
substantially in the form of Exhibit H attached hereto.
25
"Subsidiary Pledge Agreement" shall mean any Subsidiary Pledge
Agreement made by each Subsidiary of the Borrower having one or more of its own
Subsidiaries, on the one hand, in favor of the Administrative Agent, on the
other hand, or any supplement thereto or confirmation thereof, in form and
substance satisfactory to the Administrative Agent, or any similar agreement
substantially in the form of Exhibit I attached hereto.
"Subsidiary Security Agreement" shall mean any Subsidiary Security
Agreement between any of the Borrower's Subsidiaries, on the one hand, and the
Administrative Agent, on the other hand, or any supplement thereto or
confirmation thereof, in form and substance satisfactory to the Administrative
Agent, or any similar agreement substantially in the form of Exhibit J attached
hereto.
"Syndication Agent" shall mean Bank of America, N.A., a national
banking association, in its capacity as syndication agent hereunder.
"Target Equity Amount" shall mean $247,500,000.00; provided that, if
the Reno Acquisition Agreement terminates prior to the consummation of the Reno
Acquisition, the "Target Equity Amount" shall mean $225,000,000.00.
"Term Loan" shall mean, collectively, the amounts advanced by the
Lenders to the Borrower under the Term Loan Commitment and evidenced by the Term
Loan Notes.
"Term Loan Commitment" shall mean the several obligations of the
Lenders to advance to the Borrower, in accordance with their respective
Commitment Ratios, an aggregate sum of up to $375,000,000.00, pursuant to the
terms hereof.
"Term Loan Maturity Date" shall mean December 31, 2010 or such earlier
date as payment of the Term Loan shall be due (whether by acceleration or
otherwise).
"Term Loan Notes" shall mean, collectively, those certain amended and
restated promissory notes in the aggregate original principal amount of
$375,000,000.00, and issued to each of the Lenders by the Borrower with respect
to the Term Loan Commitment, each one substantially in the form of Exhibit G-2
attached hereto, any other promissory note issued by the Borrower to evidence
the Term Loan pursuant to this Agreement, and any extensions, renewal, or
amendments to, or replacements of, the foregoing.
"Total Debt" shall mean, as of any date, the sum of, without
duplication, (a) all Indebtedness of the Borrower and its Subsidiaries for
borrowed money (excluding Indebtedness permitted by Section 7.1(m) hereof),
including, without limitation, the Loans, (b) all Capitalized Lease Obligations
of the Borrower and its Subsidiaries, (c) all other Indebtedness of the Borrower
or any of its Subsidiaries represented by notes or drafts representing
extensions of credit on which interest is typically charged, (d) all obligations
of the Borrower or any of its Subsidiaries evidenced by bonds, debentures, notes
or other similar instruments (including, without limitation, all such
obligations to which any property or asset owned by the Borrower or any of its
Subsidiaries is subject, whether or not the obligation secured thereby shall
have been
26
assumed), (e) all obligations of the Borrower or any of its Subsidiaries under
conditional sale or other title retention agreements relating to purchased
assets, (f) all obligations of the Borrower or any of its Subsidiaries which are
incurred, issued or assumed as the deferred purchase price of property or
services and which are payable over a period in excess of one (1) year
(excluding Programming Obligations), (g) all obligations or liabilities
Guaranteed by the Borrower or any of its Subsidiaries, (h) at any time after the
occurrence and during the continuance of an event of default under any Interest
Rate Hedge Agreement, the aggregate amount payable by the Borrower or such
Subsidiary under such agreement, and (i) all obligations of the Borrower or any
of its Subsidiaries as an account party to reimburse any Person in respect of
letters of credit (including, without limitation, all Letters of Credit) or
bankers' acceptances, in each case, as of such date.
"Total Leverage Ratio" shall mean, as of any date, the ratio of (a)
Total Debt as of such date to (b) Operating Cash Flow for the four (4) quarter
period then ended or most recently ended.
"Upstream Dividends" shall have the meaning ascribed thereto in Section
7.15 hereof.
Section 1.2 Interpretation. Except where otherwise specifically
restricted, reference to a party to this Agreement or any other Loan Document
includes that party and its successors and assigns. All capitalized terms used
herein which are defined in Article 9 of the Uniform Commercial Code in effect
in the State of Georgia on the date hereof and which are not otherwise defined
herein shall have the same meanings herein as set forth therein. Whenever any
agreement, promissory note or other instrument or document is defined in this
Agreement, such definition shall be deemed to mean and include, from and after
the date of any amendment, restatement, supplement, confirmation or modification
thereof, such agreement, promissory note or other instrument or document as so
amended, restated, supplemented, confirmed or modified. All terms defined in
this Agreement in the singular shall have comparable meanings when used in the
plural and vice versa. The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
Section 1.3 Cross References. Unless otherwise specified,
references in this Agreement and in each other Loan Document to any Article or
Section are references to such Article or Section of this Agreement or such
other Loan Document, as the case may be, and, unless otherwise specified,
references in any Article, Section or definition to any clause are references to
such clause in such Article, Section or definition.
Section 1.4 Accounting Provisions. All accounting terms used in
this Agreement which are not expressly defined herein shall have the respective
meanings given to them in accordance with GAAP, all computations shall be made
in accordance with GAAP, and all balance sheets and other financial statements
shall be prepared in accordance with GAAP. All financial or accounting
calculations or determinations required pursuant to this Agreement, unless
otherwise expressly provided, shall be made on a consolidated basis for the
Borrower and its Subsidiaries.
27
ARTICLE 2
Loans and Letters of Credit
Section 2.1 The Loans.
(a) Revolving Loans. The Lenders who issued a Revolving
Loan Commitment agree, severally, in accordance with their respective Commitment
Ratios and not jointly, upon the terms and subject to the conditions of this
Agreement to lend to the Borrower, prior to the Revolving Loan Maturity Date,
amounts not at any one time outstanding to exceed, in the aggregate, the
Available Revolving Loan Commitment as then in effect. Subject to the terms and
conditions hereof, the Borrower may from time to time (i) Convert a Base Rate
Advance into a LIBOR Advance or a LIBOR Advance into a Base Rate Advance or (ii)
Continue a LIBOR Advance as a LIBOR Advance.
(b) Term Loan. The Lenders who issued a Term Loan
Commitment, agree severally, in accordance with their respective Commitment
Ratios, and not jointly, upon the terms and subject to the conditions of this
Agreement, to lend to the Borrower on the Agreement Date an amount which does
not exceed in the aggregate the Term Loan Commitment. Subject to the terms and
conditions hereof, the Borrower may from time to time (i) Convert a Base Rate
Advance into a LIBOR Advance or a LIBOR Advance into a Base Rate Advance or (ii)
Continue a LIBOR Advance as a LIBOR Advance; provided, however, that there shall
be no increase in the principal amount of the Term Loan outstanding after the
Agreement Date.
(c) The Letters of Credit. Subject to the terms and
conditions of this Agreement, the Issuing Bank agrees to issue Letters of Credit
for the account of the Borrower (for itself and on behalf of its Subsidiaries)
pursuant to Section 2.14 hereof in an aggregate amount not to exceed the
Available Letter of Credit Commitment determined immediately prior to giving
effect to the issuance thereof.
Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance shall, at
the option of the Borrower, be made as a Base Rate Advance or a LIBOR Advance;
provided, however, that at such time as there shall have occurred and be
continuing a Default hereunder, the Borrower shall not have the right to
receive, Convert an Advance to or Continue an Advance as a LIBOR Advance. Any
notice given to the Administrative Agent in connection with a Request for
Advance hereunder shall be given to the Administrative Agent prior to 11:00 a.m.
(Charlotte, North Carolina time) on any Business Day in order for such Business
Day to count toward the minimum number of Business Days required.
(b) Base Rate Advances.
(i) Advances; Conversion. The Borrower shall
give the Administrative Agent, (A) in the case of a request for a Base Rate
Advance irrevocable
28
telephonic notice on the date of such Advance and (B) in the case of a request
to Convert a Base Rate Advance to a LIBOR Advance, at least three (3) Business
Day's irrevocable prior telephonic notice, in each case, followed immediately by
a Request for Advance; provided, however, that the Borrower's failure to confirm
any telephonic notice with a Request for Advance shall not invalidate any notice
so given if acted upon by the Administrative Agent. Upon receipt of such notice
from the Borrower, the Administrative Agent shall promptly notify each Lender by
telephone or telecopy of the contents thereof.
(ii) Repayments and Reborrowings. Subject to
Section 2.1 hereof, the Borrower may repay or prepay a Base Rate Advance without
regard to its Payment Date and, (A) upon irrevocable telephonic notice on the
date of such repayment or prepayment, as applicable, followed immediately by a
Request for Advance, reborrow all or a portion of the principal amount of any
Revolving Loans previously repaid or prepaid as a Base Rate Advance, (B) upon at
least three (3) Business Days' irrevocable prior telephonic notice followed
immediately by a Request for Advance, reborrow all or a portion of the principal
of any Revolving Loan previously repaid or prepaid as one or more LIBOR
Advances, or (C) not reborrow all or any portion of such Base Rate Advance. On
the date indicated by the Borrower, such Base Rate Advance shall be so repaid
and, as applicable reborrowed. The failure to give timely notice hereunder with
respect to the Payment Date of any Base Rate Advance shall be considered a
request for a Base Rate Advance.
(c) LIBOR Advances.
(i) Advances. Upon request, the Administrative
Agent, whose determination in absence of manifest error shall be conclusive,
shall determine the available LIBOR Basis and shall notify the Borrower of such
LIBOR Basis. The Borrower shall give the Administrative Agent in the case of
LIBOR Advances at least three (3) Business Days' irrevocable prior telephonic
notice followed immediately by a Request for Advance; provided, however, that
the Borrower's failure to confirm any telephonic notice with a Request for
Advance shall not invalidate any notice so given if acted upon by the
Administrative Agent. Upon receipt of such notice from the Borrower, the
Administrative Agent shall promptly notify each Lender by telephone or telecopy
of the contents thereof.
(ii) Repayments; Conversion; Continuation.
Subject to Section 2.1 hereof, at least three (3) Business Days prior to the
Payment Date for each LIBOR Advance, the Borrower shall give the Administrative
Agent telephonic notice followed immediately by a Request for Advance specifying
whether all or a portion of such LIBOR Advance (A) is to be Continued in whole
or in part as one or more LIBOR Advances, (B) is to be Converted in whole or in
part to a Base Rate Advance, or (C) is to be repaid and not Continued or
Converted. The failure to give such notice shall preclude the Borrower from
Continuing such Advance as a LIBOR Advance on its Payment Date and shall be
considered a request for a Conversion to a Base Rate Advance. Upon such Payment
Date such LIBOR Advance will, subject to the provisions hereof, be so repaid,
Continued or Converted, as applicable.
(d) Notification of Lenders. Upon receipt of a Request
for Advance, or a notice from the Borrower with respect to any outstanding
Advance prior to the Payment Date for
29
such Advance, the Administrative Agent shall promptly, but no later than, (i)
with respect to LIBOR Advances, the close of business on the day of such notice,
and (ii) with respect to Base Rate Advances, 12:30 p.m. (Charlotte, North
Carolina time) notify each Lender (or, in the case of an Advance under the
Incremental Facility Commitment, each Lender having an Incremental Facility
Commitment) by telephone or telecopy of the contents thereof and the amount of
such Lender's portion of the Advance. With respect to each Request for Advance,
each Lender (or, in the case of an Advance under the Incremental Facility
Commitment, each Lender having an Incremental Facility Commitment) shall, not
later than 2:00 p.m. (Charlotte, North Carolina time) on the date of borrowing
specified in such Request for Advance, make available to the Administrative
Agent at the Administrative Agent's Office, or at such account as the
Administrative Agent shall designate, the amount of its portion of any Advance
which represents an additional borrowing hereunder in immediately available
funds.
(e) Disbursement.
(i) Prior to 3:00 p.m. (Charlotte, North
Carolina time) on the date of an Advance hereunder, the Administrative Agent
shall, subject to the satisfaction of the conditions set forth in Article 3
hereof, disburse the amounts made available to the Administrative Agent by the
Lenders in like funds by (A) transferring the amounts so made available by wire
transfer pursuant to the Borrower's instructions, or (B) in the absence of such
instructions, crediting the amounts so made available to the account of the
Borrower maintained with the Administrative Agent.
(ii) Unless the Administrative Agent shall have
received notice from a Lender prior to 2:00 p.m. (Charlotte, North Carolina
time) on the date of any Advance that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such Advance, the
Administrative Agent may assume that such Lender has made or will make such
portion available to the Administrative Agent on the date of such Advance and
the Administrative Agent may in its sole discretion and in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent the Lender does not make such ratable portion available to
the Administrative Agent, such Lender agrees to repay to the Administrative
Agent on demand such corresponding amount together with interest thereon, for
each day from the date such amount is made available to the Borrower until the
date such amount is repaid to the Administrative Agent, at the Federal Funds
Rate.
(iii) If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's portion of the applicable Advance for purposes of this
Agreement. If such Lender does not repay such corresponding amount immediately
upon the Administrative Agent's demand therefor, the Administrative Agent shall
notify the Borrower and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent, with interest at the Federal Funds Rate. The
failure of any Lender to fund its portion of any Advance shall not relieve any
other Lender of its obligation, if any, hereunder to fund its respective portion
of the Advance on the date of such borrowing, but no Lender shall be responsible
for any such failure of any other Lender.
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(iv) In the event that, at any time when the
Borrower is not in Default and has otherwise satisfied each of the conditions in
Section 3.2 hereof, a Lender for any reason fails or refuses to fund its portion
of an Advance and such failure shall continue for a period in excess of thirty
(30) days, then, until such time as such Lender has funded its portion of such
Advance (which late funding shall not absolve such Lender from any liability it
may have to the Borrower), or all other Lenders have received payment in full
from the Borrower (whether by repayment or prepayment) or otherwise of the
principal and interest due in respect of such Advance, such non-funding Lender
shall not have the right (A) to vote regarding any issue on which voting is
required or advisable under this Agreement or any other Loan Document, and such
Lender's portion of the Loans shall not be counted as outstanding for purposes
of determining "Required Lenders" hereunder, and (B) to receive payments of
principal, interest or fees from the Borrower, the Administrative Agent or the
other Lenders in respect of its portion of the Loans.
Section 2.3 Interest.
(a) On Base Rate Advances. Interest on each Base Rate
Advance shall be computed on the basis of a 365/366-day year for the actual
number of days elapsed and shall be payable at the Base Rate Basis for such
Advance, in arrears on the applicable Payment Date. Interest on Base Rate
Advances then outstanding shall also be due and payable on the Maturity Date.
(b) On LIBOR Advances. Interest on each LIBOR Advance
shall be computed on the basis of a 360-day year for the actual number of days
elapsed and shall be payable at the LIBOR Basis for such Advance, in arrears on
the applicable Payment Date, and, in addition, if the Interest Period for a
LIBOR Advance exceeds three (3) months, interest on such LIBOR Advance shall
also be due and payable in arrears on every three-month anniversary of the
beginning of such Interest Period. Interest on LIBOR Advances then outstanding
shall also be due and payable on the Maturity Date.
(c) Interest if No Notice of Selection of Interest Rate
Basis. If the Borrower fails to give the Administrative Agent timely notice of
its selection of a LIBOR Basis, or if for any reason a determination of a LIBOR
Basis for any Advance is not timely concluded, the Base Rate Basis shall apply
to such Advance.
(d) Interest Upon Default. Immediately upon the
occurrence of an Event of Default hereunder, the outstanding principal balance
of the Loans shall bear interest at the Default Rate. Such interest shall be
payable on demand by the Required Lenders and shall accrue until the earlier of
(i) waiver or cure of the applicable Event of Default, (ii) agreement by the
Required Lenders (or, if applicable to the underlying Event of Default, the
Lenders) to rescind the charging of interest at the Default Rate, or (iii)
payment in full of the Obligations.
(e) LIBOR Contracts. At no time may the number of
outstanding LIBOR Advances hereunder exceed eight (8) in the aggregate.
(f) Applicable Margin.
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(i) Revolving Loans. For the six (6) month
period commencing on the Agreement Date, the Applicable Margin with respect to
any Advance under the Revolving Loan Commitment shall be 3.000% for all LIBOR
Advances and 1.750% for all Base Rate Advances. Thereafter, the Applicable
Margin shall be determined by the Administrative Agent with respect to any
Advance under the Revolving Loan Commitment based upon the Total Leverage Ratio
as of the end of the fiscal quarter most recently ended, effective as of the
third (3rd) Business Day after the financial statements referred to in Section
6.1 or 6.2 hereof, as the case may be, and the Performance Certificate referred
to in Section 6.4 hereof are furnished to the Administrative Agent for such
fiscal quarter, as follows:
Applicable Margin for Applicable Margin for
Total Leverage Ratio Base Rate Advances LIBOR Advances
-------------------- --------------------- ---------------------
Greater than or equal to 6.50:1.0 1.75% 3.00%
Greater than or equal to 6.00:1.0, but less than 6.50:1.0 1.50% 2.75%
Greater than or equal to 5.50:1.0, but less than 6.00:1.0 1.25% 2.50%
Greater than or equal to 5.00:1.0, but less than 5.50:1.0 1.00% 2.25%
Greater than or equal to 4.50:1.0, but less than 5.00:1.0 0.75% 2.00%
Less than 4.50:1.0 0.50% 1.75%
(ii) Term Loan. From the six (6) month period
commencing on the Agreement Date, the Applicable Margin with respect to any
Advance under the Term Loan Commitment shall be 3.000% for all LIBOR Advances
and 1.750% for all Base Rate Advances Thereafter, the Applicable Margin shall be
determined by the Administrative Agent with respect to any Advance under the
Term Loan Commitment based upon the Total Leverage Ratio as of the end of the
fiscal quarter most recently ended, effective as of the third (3rd) Business Day
after the financial statements referred to in Section 6.1 or 6.2 hereof, as the
case may be, and the Performance Certificate referred to in Section 6.4 hereof
are furnished to the Administrative Agent for such fiscal quarter, as follows:
Applicable Margin for Applicable Margin for
Total Leverage Ratio Base Rate Advances LIBOR Advances
-------------------- --------------------- ---------------------
Greater than or equal to 6.0:1.0 1.750% 3.000%
Greater than or equal to 5.0:1.0, but less than 6.0:1.0 1.500% 2.750%
Less than 5.0:1.0 1.250% 2.500%
Notwithstanding the foregoing Sections 2.3(f)(i) and (ii), if the
Borrower shall fail to timely deliver to the Administrative Agent the financial
statements and Performance Certificate required for the calculation of the Total
Leverage Ratio for any fiscal quarter, then commencing with the Business Day
after the date such financial statements and Performance Certificate were
32
due and continuing through the third (3rd) Business Day following the date of
delivery thereof, the Total Leverage Ratio for such period shall be conclusively
presumed to be, and the Applicable Margin shall be calculated based upon, the
highest Total Leverage Ratio level listed in the table set forth above in
Section 2.3(f)(i) or (ii), as applicable.
Section 2.4 Fees.
(a) Revolving Loan Commitment Fee. The Borrower agrees
to pay to the Administrative Agent for the account of each of the Lenders, in
accordance with such Lender's respective Commitment Ratio for the Revolving Loan
Commitment a commitment fee on the Available Revolving Loan Commitment for each
day from the Agreement Date through the Revolving Loan Maturity Date. The
initial commitment fee shall be in an amount equal to the product of (i) the
Available Revolving Loan Commitment times (ii) one-half of one percent (0.50%)
from the Agreement Date and shall remain at that level until the third (3rd)
Business Day following the next date on which the financial statements referred
to in Section 6.1 or 6.2 hereof, as the case may be, and the Performance
Certificate referred to in Section 6.4 hereof are furnished to the
Administrative Agent for such fiscal quarter. Thereafter, the commitment fee
shall be determined by the Administrative Agent based upon the Total Leverage
Ratio as of the end of the fiscal quarter most recently ended, effective as of
the third (3rd) Business Day after the financial statements referred to in
Section 6.1 or 6.2 hereof, as the case may be, and the Performance Certificate
referred to in Section 6.4 hereof are furnished to the Administrative Agent for
such fiscal quarter, as follows:
Total Leverage Ratio Commitment Fee Percentage
-------------------- -------------------------
Greater than or equal to 5.50:1.0 0.500%
Less than 5.50:1.0 0.375%
Such commitment fees shall be computed on the basis of a year of 360-days for
the actual number of days elapsed, shall be payable quarterly in arrears on the
last Business Day of each fiscal quarter commencing December 31, 2002, and shall
be fully earned when due and non-refundable when paid. A final payment of all
commitment fees then payable shall also be due and payable on the Revolving Loan
Maturity Date.
(b) Letter of Credit Fees. The Letters of Credit shall
be issued for a fee equal to the Applicable Margin for LIBOR Advances for
Revolving Loans on a per annum basis as in effect as of the date of issuance
times the face amount of each Letter of Credit, payable quarterly in arrears.
The fee shall be payable to the Administrative Agent for the benefit of the
Lenders who issued a Revolving Loan Commitment in accordance with their
Commitment Ratios. If any Letter of Credit is drawn upon prior to its expiration
date, the Lenders shall reimburse to the Borrower that portion of the fee
allocable to the period from the date of the draw to the expiration date,
calculated in accordance with the Issuing Bank's standard letter of credit
procedures. In addition, the Borrower shall pay to the Issuing Bank for its own
account (i) a fronting fee in an amount equal to 0.125% on a per annum basis
times the face amount of each Letter of Credit, payable at issuance and (ii) its
standard charges for the issuance, transfer or other administration of letters
of credit and for draws upon letters of credit.
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(c) Other Fees. The Borrower shall pay such other fees
as are set forth in any fee letter executed by the Borrower in connection with
this Agreement.
Section 2.5 Mandatory Commitment Reductions.
(a) Scheduled Reductions under the Revolving Loan
Commitment. Commencing on March 31, 2004 and at the end of each fiscal quarter
thereafter, the Revolving Loan Commitment as of March 30, 2004 shall be
automatically and permanently reduced by the percentage amount set forth below
for and on the dates indicated (which reductions are in addition to those set
forth elsewhere in this Agreement):
Percentage Reduction to Revolving Loan
Commitment as of March 30, 2004
--------------------------------------
Reduction Dates
March 31, 2004, June 30, 2004, September 30, 2004
and December 31, 2004 1.250%
March 31, 2005, June 30, 2005, September 30, 2005
and December 31, 2005 2.500%
March 31, 2006, June 30, 2006, September 30, 2006
and December 31, 2006 3.750%
March 31, 2007, June 30, 2007, September 30, 2007
and December 31, 2007 5.000%
March 31, 2008, June 30, 2008, September 30, 2008
and December 31, 2008 6.250%
March 31, 2009, June 30, 2009, September 30, 2009
and December 31, 2009 6.250%
(b) Reduction From Net Proceeds of Asset Sales or
Insurance or Condemnation Proceedings. The Revolving Loan Commitment shall be
automatically and permanently reduced by an amount equal to the repayment of
Revolving Loans required under Section 2.7(b)(iii) hereof; provided, however,
that if there are no Loans then outstanding, the Revolving Loan Commitment shall
be reduced by an amount equal to Net Proceeds (Asset Sales) (excluding any Net
Proceeds (Asset Sales) reinvested pursuant to Section 2.7(b)(iii)). Reductions
to the Revolving Loan Commitment under this Section 2.5(b) shall be applied to
the reductions set forth in Section 2.5(a) hereof pro rata across the reductions
set forth therein.
(c) Reduction From Excess Cash Flow. The Revolving Loan
Commitment shall be automatically and permanently reduced by an amount equal to
the repayment of Revolving Loans required under Section 2.7(b)(iv) hereof;
provided, however, that if there are no Loans then outstanding, then the
Revolving Loan Commitment shall be reduced by an amount equal to such Excess
Cash Flow. Reductions to the Revolving Loan Commitment under this Section 2.5(c)
shall be applied to the reductions set forth in Section 2.5(a) hereof pro rata
across the reductions set forth therein.
34
(d) Reduction from Net Proceeds of Sale of Indebtedness.
The Revolving Loan Commitment shall be automatically and permanently reduced by
an amount equal to the repayment of Revolving Loans required under Section
2.7(b)(v) hereof; provided, however, that if there are no Loans then
outstanding, the Revolving Loan Commitment shall be reduced by an amount equal
to such Net Proceeds (Indebtedness). Reductions to the Revolving Loan Commitment
under this Section 2.5(d) shall be applied to the reductions set forth in
Section 2.5(a) hereof pro rata across the reductions set forth therein.
(e) Hedging Obligations. No repayment or prepayment
pursuant to this Section 2.5 shall affect any of the Borrower's obligations
under any Interest Rate Hedge Agreement.
Section 2.6 Voluntary Commitment Reductions. The Borrower shall
have the right, at any time and from time to time after the Agreement Date, upon
at least five (5) Business Days' prior written notice to the Administrative
Agent, without premium or penalty, to cancel or reduce permanently all or a
portion of the Revolving Loan Commitment, on a pro rata basis among the Lenders,
provided, however, that any such partial reduction shall be made in an amount
not less than $5,000,000.00 and in integral multiples of not less than
$1,000,000.00. As of the date of cancellation or reduction set forth in such
notice, the Revolving Loan Commitment shall be permanently reduced to the amount
stated in the Borrower's notice for all purposes herein, and the Borrower shall
pay to the Administrative Agent for the Lenders the amount necessary to reduce
the principal amount of the Revolving Loans then outstanding to not more than
the amount of the Revolving Loan Commitment as so reduced, together with accrued
interest on the amount so prepaid and commitment fees accrued through the date
of the reduction with respect to the amount reduced. Reductions to the Revolving
Loan Commitment under this Section 2.6 shall be applied to the reductions set
forth in Section 2.5(a) hereof pro rata across maturities.
Section 2.7 Prepayments and Repayments.
(a) Prepayments. The principal amount of any Base Rate
Advance may be prepaid in full or ratably in part at any time without penalty
and without regard to the Payment Date for such Advance upon written notice, or
telephonic notice followed immediately by written notice, to the Administrative
Agent on the date of such prepayment; provided, however, that the Borrower's
failure to confirm any telephonic notice with a written notice shall not
invalidate any notice so given if acted upon by the Administrative Agent. LIBOR
Advances may be prepaid prior to the applicable Payment Date, upon three (3)
Business Days' prior written notice, or telephonic notice followed immediately
by written notice, to the Administrative Agent; provided, however, that the
Borrower shall reimburse the Lenders and the Administrative Agent, on the
earlier of demand by the applicable Lender or the Maturity Date, for any loss or
reasonable out-of-pocket expense incurred by any Lender or the Administrative
Agent in connection with such prepayment, as set forth in Section 2.10 hereof;
provided further, however, that the Borrower's failure to confirm any telephonic
notice with a written notice shall not invalidate any notice so given if acted
upon by the Administrative Agent. Any partial prepayment hereunder shall be in
amounts of not less than $500,000.00 and in integral multiples of $250,000.00.
Revolving Loans prepaid pursuant to this Section
35
2.7(a) may be reborrowed, subject to the terms and conditions hereof. Any Term
Loan prepaid pursuant to this Section 2.7(a) may not be reborrowed. Amounts
prepaid shall be paid together with accrued interest on the amount so prepaid
accrued through the date of such prepayment.
(b) Repayments. The Borrower shall repay the Loans as
follows:
(i) Scheduled Repayments.
Term Loan. Commencing on March 31, 2004, the principal balance of the
Term Loan outstanding on March 30, 2004 shall be repaid in consecutive quarterly
installments on the last day of each fiscal quarter ending during the periods
set forth below until paid in full in such amounts as follows:
Percentage of Principal of the Term Loan
outstanding on March 30, 2004 Due on
Repayment Dates each Repayment Date
--------------- ----------------------------------------
March 31, 2004, June 30, 2004,
September 30, 2004 and December 31, 2004 0.250%
March 31, 2005, June 30, 2005,
September 30, 2005 and December 31, 2005 0.250%
March 31, 2006, June 30, 2006,
September 30, 2006 and December 31, 2006 0.250%
March 31, 2007, June 30, 2007,
September 30, 2007 and December 31, 2007 0.250%
March 31, 2008, June 30, 2008,
September 30, 2008 and December 31, 2008 0.250%
March 31, 2009, June 30, 2009, 0.250%
September 30, 2009 and December 31. 2009
March 31, 2010, June 30, 2010, 23.5%
September 30, 2010 and December 31, 2010
(ii) Revolving Loans in Excess of Revolving Loan
Commitment. If, at any time, the sum of the aggregate amount of the Revolving
Loans and Letter of Credit Obligations outstanding shall exceed the Revolving
Loan Commitment, the Borrower shall make a repayment of the principal amount of
the Revolving Loans on such date in an aggregate amount equal to such excess,
together with any accrued interest with respect thereto.
(iii) Repayments From Net Proceeds of Asset Sales
or Insurance or Condemnation Proceedings. On the Business Day following the
date of receipt by the Borrower or any of its Subsidiaries of any Net Proceeds
(Asset Sales) (other than in connection with an Asset Sale permitted under
Section 7.4(a)(i)hereof), the Loans shall be automatically and permanently
prepaid in an amount equal to, in the aggregate, one-hundred percent (100%) of
any Net Proceeds (Asset Sales); provided, however, that no prepayment under this
Section 2.7(b)(iii)
36
shall occur if such Net Proceeds (Asset Sales) (A) are from an Asset Sale and
are reinvested in Stations, Newspapers or other assets directly related thereto
within the succeeding two hundred seventy (270) day period or (B) are from an
insurance or condemnation proceeding and are reinvested in Stations, Newspapers,
the Porta-Phone Paging Business, the Satellite Broadcasting Business or other
assets directly related thereto within the succeeding two hundred seventy (270)
day period. Repayments under this Section 2.7(b)(iii) shall be applied first,
pro rata, to the principal of the Term Loan and, if applicable, the Incremental
Facility Loans, in inverse order of maturity and, second to the Revolving Loans.
Accrued interest on the principal amount of the Loans being repaid pursuant to
this Section 2.7(b)(iii) to the date of such repayment (together with any
additional amount owing under Section 2.10) will be paid by the Borrower
concurrently with such principal repayment.
(iv) Excess Cash Flow. On or prior to April 15,
2004, and on or prior to each April 15th thereafter during the term of this
Agreement, the Loans shall be repaid in an amount equal to, in the aggregate,
fifty percent (50%) of Excess Cash Flow for the fiscal year ended on the
immediately preceding December 31st; provided, however that no Excess Cash Flow
repayment shall be required if the Leverage Ratio is less than 5.50:1.00 at the
end of such fiscal year. Repayments under this Section 2.7(b)(iv) shall be
applied first, pro rata, to the principal of the Term Loan, and if applicable,
the Incremental Facility Loans, in inverse order of maturity and, second to the
Revolving Loans. Accrued interest on the principal amount of the Loans being
repaid pursuant to this Section 2.7(b)(iv) to the date of such repayment
(together with any additional amount owing under Section 2.10) will be paid by
the Borrower concurrently with such principal repayment.
(v) Sale of Indebtedness. On the Business Day
following the date of receipt by the Borrower or any of the Borrower's
Subsidiaries of any Net Proceeds (Indebtedness) arising from the issuance of
Indebtedness issued by the Borrower or any of Borrower's Subsidiaries after the
Agreement Date (excluding Indebtedness permitted under any subsection of Section
7.1 hereof other than subsection (j) of Section 7.1), the Loans shall be repaid
in an amount equal to one hundred percent (100%) of the Net Proceeds
(Indebtedness) related thereto; provided, however, that no prepayment under this
Section 2.7(b)(v) shall occur if such Net Proceeds (Indebtedness) (A) are from
the incurrence of Subordinated Debt issued to pay all or a portion of the
purchase price in connection with an Acquisition or to consummate an Investment,
in each case as permitted pursuant to Section 7.6, and (B) the Borrower has
complied with the requirements of subsection (j) of Section 7.1. Repayments
under this Section 2.7(b)(v) shall be applied first, pro rata, to the principal
of the Term Loan and, if applicable, the Incremental Facility Loans, in inverse
order of maturity and, second to the Revolving Loans. Accrued interest on the
principal amount of the Loans being repaid pursuant to this Section 2.7(b)(v) to
the date of such repayment (together with any additional amount owing under
Section 2.10) will be paid by the Borrower concurrently with such principal
repayment.
(vi) Revolving Loan Maturity Date. In addition
to the foregoing, a final payment of all Revolving Loans, together with accrued
interest and fees with respect thereto, shall be due and payable on the
Revolving Loan Maturity Date.
37
(vii) Term Loan Maturity Date. In addition to the
foregoing, a final payment of the Term Loan, together with accrued interest and
fees with respect thereto, shall be due and payable on the Term Loan Maturity
Date.
(viii) Incremental Facility Maturity Date. If
applicable, in addition to the foregoing, a final payment of the Incremental
Facility Loans, together with accrued interest and fees with respect thereto,
shall be due and payable on the Incremental Facility Maturity Date.
(c) Term Loan. Any Term Loan repaid pursuant to Section
2.7(b) hereof may not be reborrowed.
(d) Hedging Agreements. No repayment or prepayment
pursuant to this Section 2.7 shall affect any of the Borrower's obligations
under any Interest Rate Hedge Agreement.
Section 2.8. Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the
terms and provisions set forth herein and shall be evidenced by the Notes. One
(1) Revolving Loan Note, one (1) Term Loan Note, and, if applicable, one (1)
Incremental Facility Note shall be payable to the order of each Lender, in
accordance with such Lender's respective applicable Commitment Ratio. The
Revolving Loan Notes, Term Loan Notes, and, if applicable, the Incremental
Facility Notes shall be issued by the Borrower to the applicable Lenders and
shall be duly executed and delivered by one (1) or more Authorized Signatories.
Any Lender (i) which is not a United States Person (a "Non-U.S. Lender") and
(ii) which would become completely exempt from withholding of United States
federal income taxes in respect of payment of any obligations due to such Lender
hereunder or under the Notes or any other Loan Document relating to any of its
Loans if such Loans were in registered form for United States federal income tax
purposes may request the Borrower (through the Administrative Agent), and the
Borrower agrees thereupon, at the cost and expense of such Lender to register
such Loans as provided in Section 11.5 hereof and to issue to such Lender Notes
evidencing such Loans as Registered Notes or to exchange Notes evidencing such
Loans for new Registered Notes, as applicable. Registered Notes may not be
exchanged for Notes that are not in registered form.
(b) Each Lender may open and maintain on its books in the
name of the Borrower a loan account with respect to its portion of the Loans and
interest thereon. Each Lender which opens such a loan account shall debit such
loan account for the principal amount of its portion of each Advance made by it
and accrued interest thereon, and shall credit such loan account for each
payment on account of principal of or interest on its Loans. The records of a
Lender with respect to the loan account maintained by it shall be prima facie
evidence of its portion of the Loans and accrued interest thereon absent
manifest error, but the failure of any Lender to make any such notations or any
error or mistake in such notations shall not affect the Borrower's repayment
obligations with respect to such Loans.
Section 2.9 Manner of Payment.
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(a) Each payment (including any prepayment) by the
Borrower on account of the principal of or interest on the Loans, commitment
fees and any other amount owed to the Lenders or the Administrative Agent or any
of them under this Agreement or the Notes shall be made not later than 1:00 p.m.
(Charlotte, North Carolina time) on the date specified for payment under this
Agreement to the Administrative Agent at the Administrative Agent's Office, for
the account of the Lenders or the Administrative Agent, as the case may be, in
lawful money of the United States of America in immediately available funds. Any
payment received by the Administrative Agent after 1:00 p.m. (Charlotte, North
Carolina time) shall be deemed received on the next Business Day. Receipt by the
Administrative Agent of any payment intended for any Lender or Lenders hereunder
prior to 1:00 p.m. (Charlotte, North Carolina time) on any Business Day shall be
deemed to constitute receipt by such Lender or Lenders on such Business Day. In
the case of a payment for the account of a Lender, the Administrative Agent will
promptly, but no later than the close of business on the date such payment is
deemed received, thereafter distribute the amount so received in like funds to
such Lender. If the Administrative Agent shall not have received any payment
from the Borrower as and when due, the Administrative Agent will promptly notify
the Lenders accordingly. In the event that the Administrative Agent shall fail
to make distribution to any Lender as required under this Section 2.9, the
Administrative Agent agrees to pay such Lender interest from the date such
payment was due until paid at the Federal Funds Rate.
(b) The Borrower agrees to pay principal, interest, fees
and all other amounts due hereunder or under the Notes without set-off or
counterclaim or any deduction whatsoever. So long as the applicable Lender has
complied with Section 2.13 hereof, the Borrower agrees to pay principal,
interest, fees and all other amounts due hereunder, under the Notes or under any
other Loan Document free and clear of all taxes, levies and withholding. So long
as the applicable Lender has complied with Section 2.13 hereof, if the Borrower
is required by Applicable Law to deduct any taxes from or in respect of any sum
payable to the such Lender hereunder, under any Note or under any other Loan
Document: (i) the sum payable hereunder or thereunder, as applicable, shall be
increased to the extent necessary to provide that, after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.9(b)), the Administrative Agent or such Lender, as applicable,
receives an amount equal to the sum it would have received had no such
deductions been made; (ii) the Borrower shall make such deductions from such
sums payable hereunder or thereunder, as applicable, and pay the amount so
deducted to the relevant taxing authority as required by Applicable Law; and
(iii) the Borrower shall provide the Administrative Agent or such Lender, as
applicable, with evidence satisfactory to the Administrative Agent or such
Lender, as applicable, that such deducted amounts have been paid to the relevant
taxing authority. Before making any such deductions, such Lender shall designate
a different lending office and may take such alternative courses of action if
such designation or alternative courses of action will avoid the need for such
deductions and will not in the good faith judgment of such Lender be otherwise
disadvantageous to such Lender.
(c) Subject to any contrary provisions in the definition
of Interest Period, if any payment under this Agreement or any of the other Loan
Documents is specified to be made on a day which is not a Business Day, it shall
be made on the next Business Day, and such
39
extension of time shall in such case be included in computing interest and fees,
if any, in connection with such payment.
(d) Prior to the declaration of an Event of Default under
Section 8.2 hereof, if some but less than all amounts due from the Borrower are
received by the Administrative Agent with respect to the Obligations, the
Administrative Agent shall (subject to Section 2.2(e) hereof) distribute such
amounts in the following order of priority, all in accordance where applicable
with the respective Commitment Ratios of the Lenders for the applicable
Commitment: first, to the payment of any fees or expenses then due and payable
to the Administrative Agent, the Issuing Bank and the Lenders, or any of them
hereunder or under any of the other Loan Documents (on a pro rata basis, based
on all such amounts then due and payable); second, to the payment of interest
then due and payable on the Loans (on a pro rata basis, based on all such
amounts then due and payable); third, to the payment of all other amounts not
otherwise referred to in this Section 2.9(d) then due and payable to the
Administrative Agent, the Issuing Bank and the Lenders, or any of them,
hereunder or under the Notes, the Letters of Credit or any other Loan Document
(on a pro rata basis, based on all such amounts then due and payable); fourth,
to the payment of principal then due and payable on the Loans and any Interest
Rate Hedge Obligations (including any termination payments and any accrued and
unpaid interest thereon) (on a pro rata basis, based on all such amounts then
due and payable); fifth, to any other Obligations not otherwise referred to in
this Section 2.9(d) until all such Obligations are paid in full (on a pro rata
basis, based on all such amounts then due and payable); sixth, to damages
incurred by the Administrative Agent, the Issuing Bank or the Lenders, or any of
them, by reason of any breach hereof or of any other Loan Document (on a pro
rata basis, based on all such amounts then due and payable); and seventh, as
otherwise required by Applicable Law.
Section 2.10 Reimbursement.
(a) Whenever any Lender shall sustain or incur any losses
or reasonable out-of-pocket expenses in connection with (i) failure by the
Borrower to borrow, Continue or Convert any LIBOR Advance after having given
notice of its intention to borrow, Continue or Convert such Advance in
accordance with Section 2.2 hereof (whether by reason of the Borrower's election
not to proceed or the non-fulfillment of any of the conditions set forth in
Article 3), or (ii) prepayment (or failure to prepay after giving notice
thereof) of any LIBOR Advance in whole or in part for any reason, the Borrower
agrees to pay to such Lender, upon the earlier of such Lender's demand or the
Maturity Date, an amount sufficient to compensate such Lender for all such
losses and out-of-pocket expenses. Such Lender's good faith determination of the
amount of such losses or out-of-pocket expenses, as set forth in writing and
accompanied by calculations in reasonable detail demonstrating the basis for its
demand, shall be presumptively correct absent manifest error.
(b) Losses subject to reimbursement hereunder shall
include, without limitation, expenses incurred by any Lender or any participant
of such Lender permitted hereunder in connection with the re-employment of funds
prepaid, paid, repaid, not borrowed, or not paid, as the case may be, and will
be payable whether the Maturity Date is changed by virtue of an amendment hereto
(unless such amendment expressly waives such payment) or as a result of
acceleration of the Obligations.
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Section 2.11 Pro Rata Treatment.
(a) Advances. Each Advance under the Revolving Loan
Commitment and, if applicable, the Incremental Facility Commitments, from the
Lenders hereunder made on or after the Agreement Date, shall be made pro rata on
the basis of the respective Commitment Ratios of the Lenders. On the Agreement
Date, each Advance from the Lenders under the Term Loan Commitment shall be made
pro rata on the basis of the respective Commitment Ratios of the Lenders.
(b) Payments. Each payment and prepayment of principal
of the Loans, and, except as provided in each of Section 2.2(e) and Article 10
hereof, each payment of interest on the Loans, shall be made to the Lenders pro
rata on the basis of their respective unpaid principal amounts outstanding under
the applicable Notes immediately prior to such payment or prepayment. If any
Lender shall obtain any payment (whether involuntary, through the exercise of
any right of set-off, or otherwise) on account of the Loans in excess of its
ratable share of the applicable Loans under its applicable Commitment Ratio,
such Lender shall forthwith purchase from the other Lenders such participations
in the portion of the applicable Loans made by them as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery. The Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this
Section 2.11(b) may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
Section 2.12 Capital Adequacy. If after the date hereof, the
adoption of any Applicable Law regarding the capital adequacy of banks or bank
holding companies, or any change in Applicable Law (whether adopted before or
after the Agreement Date) or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by such Lender
with any directive regarding capital adequacy (whether or not having the force
of law) of any such governmental authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on any Lender's
capital as a consequence of its obligations hereunder with respect to the Loans
and the Revolving Loan Commitment (or, if applicable, Incremental Facility
Commitments) to a level below that which it could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's policies
with respect to capital adequacy immediately before such adoption, change or
compliance and assuming that such Lender's capital was fully utilized prior to
such adoption, change or compliance) by an amount reasonably deemed by such
Lender to be material, then, upon the earlier of demand by such Lender or the
Maturity Date, the Borrower shall promptly pay to such Lender such additional
amounts as shall be sufficient to compensate such Lender for such reduced
return, together with interest on such amount from the fourth (4th) Business Day
after the date of demand or the Maturity Date, as applicable, until payment in
full thereof at the Default Rate. Notwithstanding the foregoing, the Borrower
shall only be obligated to
41
compensate such Lender for any amount under this subsection arising or occurring
during (i) in the case of each such request for compensation, any time or period
commencing not more than ninety (90) days prior to the date on which such Lender
submits such request and (ii) any other time or period during which, because of
the unannounced retroactive application of such law, regulation, interpretation,
request or directive, such Lender could not have known that the resulting
reduction in return might arise. A certificate of such Lender setting forth the
amount to be paid to such Lender by the Borrower as a result of any event
referred to in this paragraph and supporting calculations in reasonable detail
shall be presumptively correct absent manifest error.
Section 2.13 Lender Tax Forms. On or prior to the Agreement Date,
and prior to the date on which any Person becomes a Lender hereunder, and from
time to time thereafter if required by Applicable Law due to a change in
circumstances or if reasonably requested by the Borrower or the Administrative
Agent (unless such Lender is unable to do so by reasons of change in Applicable
Law), each Lender organized under the laws of a jurisdiction outside the United
States shall provide the Administrative Agent and the Borrower with (i) an
accurate and duly completed United States Internal Revenue Service Form 4224 or
Form 1001, as the case may be, and Form X-0XXX, X-0XXX or Form W-9, as the case
may be, or other applicable or successor form, certificate or document
prescribed by the United States Internal Revenue Service certifying as to such
Lender's entitlement to full exemption from United States withholding tax with
respect to all payments to be made to such Lender hereunder or under any Note or
other Loan Document, or, (ii) in the case of a Lender that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (A) an
accurate and duly completed United States Internal Revenue Service Form W-8BEN,
W-8ECI, or other applicable or successor form, certificate or document
prescribed by the United States Internal Revenue Service certifying to such
Lender's foreign status and (B) a certificate certifying to such Lender's
entitlement to a complete exemption from United States withholding tax with
respect to all payments hereunder or under any Note or other Loan Document. In
the event that the Borrower withholds a portion of any payment hereunder or
under any Note or other Loan Document in accordance with this Section 2.13, the
Borrower shall provide evidence that such taxes of any nature whatsoever in
respect of this Agreement, any Loan or any Note or other Loan Document shall
have been paid to the appropriate taxing authorities by delivery to the Lender
on whose account such payment was made of the official tax receipts or notarized
copies of such receipts within thirty (30) days after payment of such tax. If
the Borrower fails to make any such payment when due, the Borrower shall
indemnify the Lenders for any incremental taxes, interest or penalties that may
become payable by any Lender as a result of any such failure. For any period
with respect to which a Lender has failed to provide the Borrower with the
appropriate form described above (other than if such failure is due to a change
in Applicable Law occurring subsequent to the date on which a form originally
was required to be provided), such Lender shall not be entitled to
indemnification with respect to withholding taxes imposed by the United States
and the Borrower shall be allowed to deduct from payments to such Lender
hereunder and under any Note or other Loan Document, the amount of any such
withholding taxes paid by the Borrower.
Section 2.14 Letters of Credit.
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(a) Subject to the terms and conditions hereof, the
Issuing Bank, on behalf of the Lenders, and in reliance on the agreements of the
Lenders set forth in Section 2.14(d) hereof, hereby agrees to issue one or more
Letters of Credit up to an aggregate face amount equal to the Available Letter
of Credit Commitment determined immediately prior to giving effect to the
issuance thereof; provided, however, that the Issuing Bank shall not issue any
Letter of Credit unless the conditions precedent to the issuance thereof set
forth in Section 3.3 hereof have been satisfied, and shall have no obligation to
issue any Letter of Credit if any Default then exists or would be caused thereby
or if, after giving effect to such issuance, the Available Revolving Loan
Commitment would be less than zero; and provided further, however, that at no
time shall the total Letter of Credit Obligations outstanding hereunder exceed
$20,000,000.00. Each Letter of Credit shall (i) be denominated in United States
Dollars, and (ii) expire no later than the earlier to occur of (A) the fifth
(5th) Business Day prior to the Revolving Loan Maturity Date or (B) 364 days
after its date of issuance (but may contain provisions for automatic renewal;
provided that no Default or Event of Default exists on the renewal date or would
be caused by such renewal). Each Letter of Credit shall be subject to the
Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 and, to the extent not
inconsistent therewith, the laws of the State of Georgia. The Issuing Bank shall
not at any time be obligated to issue, or cause to be issued, any Letter of
Credit if such issuance would conflict with, or cause the Issuing Bank to exceed
any limits imposed by, any Applicable Law. If a Letter of Credit provides that
it is automatically renewable unless notice is given by the Issuing Bank that it
will not be renewed, the Issuing Bank shall not be bound to give a notice of
non-renewal unless directed to do so by the Required Lenders at least sixty-five
(65) days prior to the then scheduled expiration date of such Letter of Credit.
The Existing Letters of Credit shall be deemed to be Letters of Credit issued
and outstanding under this Agreement on and after the Agreement Date.
(b) The Borrower may from time to time request the
issuance of, and be provided with by the Issuing Bank, Letters of Credit. The
Borrower shall execute and deliver to the Administrative Agent and the Issuing
Bank a Request for Issuance of Letter of Credit for each Letter of Credit to be
issued by the Issuing Bank, not later than 12:00 noon (Charlotte, North Carolina
time) on the fifth (5th) Business Day preceding the date on which the requested
Letter of Credit is to be issued, or such shorter notice as may be acceptable to
the Issuing Bank and the Administrative Agent. Upon receipt of any such Request
for Issuance of Letter of Credit, subject to satisfaction of all conditions
precedent thereto as set forth in Section 3.3 hereof, the Issuing Bank shall
process such Request for Issuance of Letter of Credit and the certificates,
documents and other papers and information delivered to it in connection
therewith in accordance with its customary procedures and shall promptly issue
the Letter of Credit requested thereby. The Issuing Bank shall furnish a copy of
such Letter of Credit to the Borrower and the Administrative Agent following the
issuance thereof. The Borrower shall pay or reimburse the Issuing Bank for
normal and customary costs and expenses incurred by the Issuing Bank in issuing,
effecting payment under, amending or otherwise administering the Letters of
Credit.
(c) At such time as the Administrative Agent shall be
notified by the Issuing Bank that the beneficiary under any Letter of Credit has
drawn on the same, the Administrative Agent shall promptly notify the Borrower
and each Lender, by telephone or telecopy, of the
43
amount of the draw and, in the case of each Lender, such Lender's portion of
such draw amount as calculated in accordance with its Revolving Loan Commitment
Ratio.
(d) The Borrower hereby agrees to immediately reimburse
the Issuing Bank for amounts paid by the Issuing Bank in respect of draws under
a Letter of Credit issued at the Borrower's request. In order to facilitate such
repayment, the Borrower hereby irrevocably requests the Lenders having a
Revolving Loan Commitment, and such Lenders hereby severally agree, on the terms
and conditions of this Agreement (other than as provided in Article 2 hereof
with respect to the amounts of, the timing of requests for, and the repayment of
Advances hereunder and in Section 3.3 hereof with respect to conditions
precedent to Advances hereunder), with respect to any drawing under a Letter of
Credit prior to the occurrence of an event described in Sections 8.1(f) or (g)
hereof, to make an Advance (which Advance may be a LIBOR Advance if the Borrower
so requests in a timely manner or may be converted to a LIBOR Advance as
provided in the Loan Agreement) to the Borrower on each day on which a draw is
made under any Letter of Credit and in the amount of such draw, and to pay the
proceeds of such Advance directly to the Issuing Bank to reimburse the Issuing
Bank for the amount paid by it upon such draw. Each Lender having a Revolving
Loan Commitment shall pay its share of such Advance by paying its portion of
such Advance to the Administrative Agent in accordance with Article 2 hereof and
its Revolving Loan Commitment Ratio, without reduction for any set-off or
counterclaim of any nature whatsoever and regardless of whether any Default or
Event of Default (other than with respect to an event described in Sections 8.1
(f) or (g) hereof) then exists or would be caused thereby. If at any time that
any Letters of Credit are outstanding, any of the events described in Sections
8.1 (f) or (g) hereof shall have occurred and be continuing, then each Lender
having a Revolving Loan Commitment shall, automatically upon the occurrence of
any such event and without any action on the part of the Issuing Bank, the
Borrower, the Administrative Agent or such Lender, be deemed to have purchased
an undivided participation in the face amount of all Letters of Credit then
outstanding in an amount equal to such Lender's Revolving Loan Commitment Ratio,
and each Lender having a Revolving Loan Commitment shall, notwithstanding such
Default or Event of Default, upon a drawing under any Letter of Credit,
immediately pay to the Administrative Agent for the account of the Issuing Bank,
in immediately available funds, the amount of such Lender's participation (and
the Issuing Bank shall deliver to such Lender a loan participation certificate
dated the date of the occurrence of such event and in the amount of such
Lender's Revolving Loan Commitment Ratio). The disbursement of funds in
connection with a draw under a Letter of Credit pursuant to this Section 2.14(d)
shall be subject to the terms and conditions of Article 2 hereof. The obligation
of each Lender having a Revolving Loan Commitment to make payments to the
Administrative Agent, for the account of the Issuing Bank, in accordance with
this Section 2.14 shall be absolute and unconditional and no such Lender shall
be relieved of its obligations to make such payments by reason of noncompliance
by any other Person with the terms of the Letter of Credit or for any other
reason. The Administrative Agent shall promptly remit to the Issuing Bank the
amounts so received from the other Lenders. Any overdue amounts payable by the
Lenders having a Revolving Loan Commitment to the Issuing Bank in respect of a
draw under any Letter of Credit shall bear interest, payable on demand, at the
Federal Funds Rate.
(e) The Borrower agrees that any action taken or omitted
to be taken by the Issuing Bank in connection with any Letter of Credit, except
for such actions or omissions as
44
shall constitute gross negligence or willful misconduct on the part of the
Issuing Bank, shall be binding on the Borrower as between the Borrower and the
Issuing Bank, and shall not result in any liability of the Issuing Bank to the
Borrower. The obligation of the Borrower to reimburse the Lenders for Advances
made to reimburse the Issuing Bank for draws under the Letter of Credit shall be
absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances whatsoever,
including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of
any Loan Document;
(ii) any amendment or waiver of or consent to any
departure from any or all of the Loan Documents;
(iii) any improper use which may be made of any
Letter of Credit or any improper acts or omissions of any beneficiary or
transferee of any Letter of Credit in connection therewith;
(iv) the existence of any claim, set-off, defense
or any right which the Borrower may have at any time against any beneficiary or
any transferee of any Letter of Credit (or Persons for whom any such beneficiary
or any such transferee may be acting) or any Lender (other than the defense of
payment to such Lender in accordance with the terms of this Agreement) or any
other Person, whether in connection with any Letter of Credit, any transaction
contemplated by any Letter of Credit, this Agreement or any other Loan Document,
or any unrelated transaction;
(v) any statement or any other documents
presented under any Letter of Credit proving to be insufficient, forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(vi) the insolvency of any Person issuing any
documents in connection with any Letter of Credit;
(vii) any breach of any agreement between the
Borrower and any beneficiary or transferee of any Letter of Credit, provided
that the same shall not have resulted from the gross negligence or willful
misconduct of the Issuing Bank;
(viii) any irregularity in the transaction with
respect to which any Letter of Credit is issued, including, without limitation,
any fraud by the beneficiary or any transferee of such Letter of Credit,
provided that the same shall not be the result of the gross negligence or
willful misconduct of the Issuing Bank;
(ix) any errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
wireless or otherwise, whether or not they are in code, provided that the same
shall not be the result of the gross negligence or willful misconduct of the
Issuing Bank;
45
(x) any act, error, neglect, default, omission,
insolvency or failure of business of any of the correspondents of the Issuing
Bank, provided that the same shall not have constituted the gross negligence or
willful misconduct of the Issuing Bank;
(xi) any other circumstances arising from causes
beyond the control of the Issuing Bank;
(xii) payment by the Issuing Bank under any Letter
of Credit against presentation of a sight draft or a certificate which does not
comply with the terms of such Letter of Credit, provided that such payment shall
not have constituted gross negligence or willful misconduct of the Issuing Bank;
and
(xiii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, provided that such
other circumstances or happenings shall not have been the result of gross
negligence or willful misconduct of the Issuing Bank.
(f) If any change in Applicable Law, any change in the
interpretation or administration thereof, or any change in compliance with
Applicable Law by the Issuing Bank or any Lender as a result of any official
request or directive of any governmental authority, central bank or comparable
agency (whether or not having the force of law) shall (i) impose, modify or deem
applicable any reserve (including, without limitation, any imposed by the Board
of Governors of the Federal Reserve System), special deposit, capital adequacy,
assessment or other requirements or conditions against Letters of Credit issued
by the Issuing Bank or against participations by any other Lender in the Letters
of Credit or (ii) impose on the Issuing Bank or any other Lender any other
condition regarding any Letter of Credit or any participation therein, and the
result of any of the foregoing in the reasonable determination of the Issuing
Bank or such Lender, as the case may be, is to increase the cost to the Issuing
Bank or such Lender of issuing or maintaining any Letter of Credit or purchasing
or maintaining any participation therein, as the case may be, by an amount
(which amount shall be reasonably determined) deemed by the Issuing Bank or such
Lender to be material, and the designation of a different lending office will
not avoid the need for additional compensation, then, on request by the Issuing
Bank or such Lender, the Borrower shall pay, within ten (10) days after demand,
the Issuing Bank or such Lender, as the case may be, such additional amount or
amounts as the Issuing Bank or such Lender, as the case may be, so determines
will compensate it for such increased costs. Notwithstanding the foregoing, the
Borrower shall only be obligated to compensate such Lender for any amount under
this subsection arising or occurring during (i) in the case of each such request
for compensation, any time or period commencing not more than ninety (90) days
prior to the date on which such Lender submits such request and (ii) any other
time or period during which, because of the unannounced retroactive application
of such law, regulation, interpretation, request or directive, such Lender could
not have known that the resulting reduction in return might arise. A certificate
of the Issuing Bank or such Lender setting forth the amount, and in reasonable
detail the basis for the Issuing Bank or such Lender's determination of such
amount, to be paid to the Issuing Bank or such Lender by the Borrower as a
result of any event referred to in this Section 2.14(f) shall, absent manifest
error, be conclusive.
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(g) Each Lender having a Revolving Loan Commitment shall
be responsible for its pro rata share (based on such Lender's Revolving Loan
Commitment Ratio) of any and all reasonable out-of-pocket costs, expenses
(including, without limitation, reasonable legal fees) and disbursements which
may be incurred or made by the Issuing Bank in connection with the collection of
any amounts due under, the administration of, or the presentation or enforcement
of any rights conferred by any Letter of Credit, the Borrower's or any
guarantor's obligations to reimburse or otherwise. In the event the Borrower
shall fail to pay such expenses of the Issuing Bank within ten (10) days after
demand for payment by the Issuing Bank, each Lender having a Revolving Loan
Commitment shall thereupon pay to the Issuing Bank its pro rata share (based on
such Lender's Revolving Loan Commitment Ratio) of such expenses within five (5)
days from the date of the Issuing Bank's notice to the Lenders having a
Revolving Loan Commitment of the Borrower's failure to pay; provided, however,
that if the Borrower or any guarantor shall thereafter pay such expense, the
Issuing Bank will repay to each Lender having a Revolving Loan Commitment Ratio
the amounts received from such Lender hereunder.
(h) The Borrower agrees that each Advance by the Lenders
having a Revolving Loan Commitment to reimburse the Issuing Bank for draws under
any Letter of Credit, shall, for all purposes hereunder, be deemed to be an
Advance under the Revolving Loan Commitment to the Borrower and shall be payable
and bear interest in accordance with all other Revolving Loans to the Borrower.
(i) The Borrower will indemnify and hold harmless the
Co-Lead Arrangers, the Administrative Agent, the Issuing Bank and each other
Lender and each of their respective employees, representatives, officers and
directors from and against any and all claims, liabilities, obligations, losses
(other than loss of profits), damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (including
reasonable attorneys' fees, but excluding taxes) which may be imposed on,
incurred by or asserted against the Administrative Agent, the Issuing Bank or
any such other Lender in any way relating to or arising out of the issuance of a
Letter of Credit, except that the Borrower shall not be liable to the
Administrative Agent, the Issuing Bank or any such Lender for any portion of
such claims, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Co-Lead Arrangers, the Administrative
Agent, the Issuing Bank or such Lender, as the case may be, as determined by a
non-appealable judicial order. This Section 2.14(i) shall survive termination of
this Agreement.
Section 2.15 Incremental Facility Loans.
(a) Subject to the terms and conditions of this
Agreement, the Borrower may request the Incremental Facility Commitment on any
Business Day on or prior to December 31, 2005; provided, however, that the
Borrower may not request the Incremental Facility Commitment or an Incremental
Facility Advance after the occurrence and during the continuance of a Default,
including, without limitation, any Default that would result after giving effect
to any Incremental Facility Advance; and provided, further, that the Borrower
may request only five (5) Incremental Facility Commitments (although such
commitments may be from more than one Lender) and must request a minimum
Incremental Facility Commitment of $25,000,000.00.
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The aggregate amount of the Incremental Facility Commitments and outstanding
Incremental Facility Loans shall not exceed $300,000,000.00. The maturity date
for the Incremental Facility Loans shall be no earlier than six (6) calendar
months after the Term Loan Maturity Date and the average life of each
Incremental Facility Loan shall be longer than the average life of the Term
Loan. The decision of any Lender to make an Incremental Facility Commitment to
the Borrower shall be at such Lender's sole discretion and shall be made in
writing. The Incremental Facility Commitment (x) must be in the form of a term
loan facility, (y) must not require principal repayment earlier, or in amount
larger (or percentage greater), than those set forth in the repayment schedule
for the Term Loans as set forth in Section 2.7(b) hereof and (z) must be
governed by this Agreement and the other Loan Documents and be on terms and
conditions no more restrictive than those set forth herein and therein. Each
Lender shall have the right, but not the obligation, to participate in any
Incremental Facility Commitment on a pro rata basis.
(b) Prior to the effectiveness of the Incremental
Facility Commitment, the Borrower shall (i) deliver to the Administrative Agent
and the Lenders a Notice of Incremental Facility Commitment in substantially the
form of Exhibit O attached hereto; and (ii) provide revised projections to the
Administrative Agent and the Lenders, which shall be in form and substance
reasonably satisfactory to the Administrative Agent and which shall demonstrate
the Borrower's ability to timely repay such Incremental Facility Commitment and
any Incremental Facility Loans thereunder and to comply with the covenants
contained in Sections 7.8, 7.9, 7.10 and 7.11.
(c) No Incremental Facility Commitment shall by itself
result in any reduction of the Commitment or of the Commitment Ratio of the
Lender making such Incremental Facility Commitment.
(d) Incremental Facility Loans (i) shall bear interest at
the Base Rate or LIBOR, in each case, plus an interest rate margin based on
prevailing market conditions at such time and as agreed upon between the
Borrower and the Lenders holding such Incremental Facility Commitments; provided
that if at any time the interest rate margin applicable to any Incremental
Facility Loan exceeds the Applicable Margin then in effect with respect to any
Advance under the Term Loan Commitment (as determined pursuant to Section
2.3(f)(ii) hereof) by more than 0.25%, then the Applicable Margin with respect
to any Advance under the Term Loan Commitment shall be automatically increased
to a percentage 0.25% below the interest rate margin then applicable to
Incremental Facility Loans; (ii) subject to Section 2.15(a) hereof, shall be
repaid as agreed to by the Borrower and the Lender making such Incremental
Facility Loans; (iii) shall for all purposes be Loans and Obligations hereunder
and under the Loan Documents; (iv) shall be represented by an Incremental
Facility Note in substantially the form of Exhibit G-3 attached hereto; and (v)
shall rank pari passu with the other Loans for purposes of Sections 2.9 and 8.2
hereof.
(e) Incremental Facility Advances shall be requested by
the Borrower pursuant to a request (which shall be in substantially the form of
a Request for Advance) delivered in the same manner as a Request for Advance,
but shall be funded pro rata only by those Lenders holding the Incremental
Facility Commitment.
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ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to Effectiveness of Agreement.
The obligation of the Lenders to undertake the Commitments and the
effectiveness of this Agreement are subject to the prior or contemporaneous
fulfillment of each of the following conditions:
(a) The Administrative Agent and the Lenders shall have
received each of the following:
(i) this Agreement duly executed;
(ii) duly executed Notes;
(iii) duly executed Borrower Pledge Agreement;
(iv) duly executed Borrower Security Agreement,
together with duly authorized appropriate Uniform Commercial Code financing
statement forms to the extent requested by the Administrative Agent;
(v) duly executed Subsidiary Guaranties;
(vi) duly executed Subsidiary Pledge Agreements;
(vii) duly executed (A) Assignments of General
Partner Interests and (B) Assignments of Limited Partner Interests, each
together with duly executed appropriate Uniform Commercial Code financing
statement forms to the extent requested by the Administrative Agent;
(viii) duly executed Subsidiary Security
Agreements, together with duly executed appropriate Uniform Commercial Code
financing statement forms to the extent requested by the Administrative Agent;
(ix) the loan certificate of the Borrower dated
as of the Agreement Date, in substantially the form attached hereto as Exhibit
K-1, including a certificate of incumbency with respect to each Authorized
Signatory of such Person, together with the following items: (A) a true,
complete and correct copy of the Articles of Incorporation of the Borrower as
in effect on the Agreement Date, (B) a true, complete and correct copy of the
By-laws of the Borrower as in effect on the Agreement Date, (C) certificates of
good standing for the Borrower issued by the Secretary of State or similar
state official for the state of incorporation of the Borrower and for each
state in which the Borrower is required to qualify to do business, (D) a true,
complete and correct copy of the corporate resolutions of the Borrower
authorizing the Borrower to execute, deliver and perform this Agreement and the
other Loan Documents and (E)
49
a true, complete and correct copy of any shareholders' agreements or voting
agreements in effect with respect to the Ownership Interests of the Borrower;
(x) a loan certificate of each Subsidiary of
the Borrower (including all License Subs existing as of the Agreement Date)
dated as of the Agreement Date, in substantially the form attached hereto as
Exhibit K-2, including a certificate of incumbency with respect to each
Authorized Signatory of such Person, together with the following items: (A) a
true, complete and correct copy of the Articles or Certificate of Incorporation
or Formation of such Person as in effect on the Agreement Date, (B) a true,
complete and correct copy of the By-laws or Operating Agreement of such Person
as in effect on the Agreement Date, (C) certificates of good standing for such
Person issued by the Secretary of State or similar state official for the state
of incorporation or formation of such Person and for each state in which such
Person is required to qualify to do business, (D) a true, complete and correct
copy of the resolutions of such Person (or another appropriate Person)
authorizing such Person to execute, deliver and perform the Loan Documents to
which it is a party and (E) a true, complete and correct copy of any
shareholders' agreements or voting agreements in effect with respect to the
Ownership Interests of such Person;
(xi) copies of insurance binders or certificates
covering the assets of the Borrower and its Subsidiaries, and otherwise meeting
the requirements of Section 5.5 hereof;
(xii) legal opinions of (A) Xxxxxxxx Xxxxxxx LLP,
corporate counsel to the Borrower and its Subsidiaries, and (B) FCC counsel to
the Borrower and its Subsidiaries, addressed to each Lender and the
Administrative Agent and dated as of the Agreement Date which shall be in form
and substance acceptable to the Administrative Agent;
(xiii) each legal opinion delivered in connection
with the Merger addressed to each Lender and the Administrative Agent or
accompanied by written consents permitting the Lenders and the Administrative
Agent to rely on such opinions;
(xiv) duly executed Certificate of Financial
Condition for the Borrower and its Subsidiaries on a consolidated basis as to
the financial condition, solvency and related matters after giving effect to
the Merger, in form and substance satisfactory to the Administrative Agent;
(xv) copies of (a) the unaudited financial
statements of the Borrower and its Subsidiaries for the fiscal period ended
June 30, 2002, certified by the chief financial officer of the Borrower,
(including, without limitation, monthly financial statements for the months
ended July 31, 2002 and August 31, 2002), (b) the unaudited financial
statements of SHC and its Subsidiaries for the fiscal period ended June 30,
2002, certified by the chief financial officer of the SHC, (including, without
limitation, monthly financial statements for the months ended July 31, 2002 and
August 31, 2002), (c) audited financial statements of the Borrower and its
Subsidiaries, on a consolidated basis, for fiscal years 2000 and 2001, and (d)
audited financial statements of SHC and its Subsidiaries, on a consolidated
basis, for fiscal years 2000 and 2001;
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(xvi) eight year projected financial statements
and calculations of the Borrower and its Subsidiaries after giving effect to
the Merger, in form and substance satisfactory to the Administrative Agent and
the Lenders, specifically demonstrating (x) the Borrower's pro forma compliance
with Sections 7.8, 7.9, 7.10 and 7.11 hereof and (y) the Borrower's ability to
meet its repayment obligations hereunder through the Maturity Date; provided
that, any updates or modifications to the projected financial statements of the
Borrower, its Subsidiaries and SHC previously received by the Administrative
Agent shall be in form and substance reasonably satisfactory to the
Administrative Agent ;
(xvii) Uniform Commercial Code Lien, tax and
judgment search results with respect to the Borrower and its Subsidiaries and
SHC and its Subsidiaries;
(xviii) evidence satisfactory to the Administrative
Agent and the Lenders that there exists no Indebtedness for borrowed money of
the Borrower, its Subsidiaries or the Guarantors (other than Indebtedness
permitted under Section 7.1 hereof) and no Liens existing except for Permitted
Liens and delivery to the Administrative Agent of pay-off letters and other
documents requested by the Administrative Agent in form and substance
satisfactory to it evidencing repayment, termination, reconveyance and release
of such Indebtedness or Liens;
(xix) delivery to the Administrative Agent of all
possessory collateral, including, without limitation, any pledged notes or
pledged stock, together with the undated stock powers or note powers endorsed
in blank, as applicable;
(xx) copies of each employment agreement between
the Borrower or its Subsidiaries and their respective key employees, as
determined by the Administrative Agent in its sole discretion (including
without limitation, Xxxxx Xxxxxx and the senior vice presidents of BBC); and
(xxi) all such other documents as the
Administrative Agent may reasonably request, certified by an appropriate
governmental official or an Authorized Signatory if so requested.
(b) The Administrative Agent and the Lenders shall have
received evidence satisfactory to them that all Necessary Authorizations to the
(i) execution, delivery and performance of this Agreement and the other Loan
Documents, (ii) granting of Liens in all Operating Agreements and other
material contracts and leases of the Borrower and its Subsidiaries and (iii)
consummation of the Merger, each of which shall be in form and substance
satisfactory to the Administrative Agent, have been obtained or made, are in
full force and effect and are not subject to any pending or, to the knowledge
of the Borrower, threatened reversal or cancellation.
(c) The Borrower shall certify to the Administrative
Agent and the Lenders that each of the representations and warranties in
Article 4 hereof and each other Loan Document are true and correct as of the
Agreement Date and that no Default or Event of Default then exists or is
continuing.
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(d) (i) Other than the SHC Bankruptcy Case, there shall
not exist as of the Agreement Date any action, suit, proceeding or
investigation pending against, or, to the knowledge of the Borrower, threatened
against or in any manner relating adversely to, the Borrower, any of its
Subsidiaries, any of their respective properties or the transactions
contemplated hereby, and (ii) no event shall have occurred and no condition
exist, in each case, which, in the reasonable judgment of the Required Lenders,
has had or could be expected to have a Materially Adverse Effect.
(e) The Borrower shall have paid to the Administrative
Agent for the account of itself and each Lender the fees, expenses and other
amounts due as set forth in the fee letter dated September 5, 2002.
(f) The Borrower shall have received (i) gross cash
proceeds of at least $225,000,000.00 from the Planned Equity Offering, and (ii)
gross cash proceeds of at least $100,000,000.00 from the issuance of
Subordinated Debt pursuant to the Subordinated Note Indenture and described in
the Prospectus Supplement dated September 5, 2002.
(g) The Borrower shall have delivered to the
Administrative Agent the Acquisition Certificate in substantially the form
attached hereto as Exhibit L
(i) attaching (A) final executed copies of the
Merger Agreement and all other material documents executed in connection with
the Merger (including all exhibits, schedules, amendments, modifications and
waivers thereto); (B) all Necessary Authorizations to the consummation of the
Merger, including, without limitation, approval by the FCC to the transactions
contemplated by the Merger Agreement and the Final Bankruptcy Court Order; (C)
calculations evidencing that (1) the Leverage Ratio does not exceed 6.90 to
1.00, (2) the Senior Leverage Ratio does not exceed of 4.50 to 1.00, and (3)
Operating Cash Flow of the Borrower and its Subsidiaries, for the twelve (12)
consecutive calendar month period ending August 31, 2002 is not less than
$97,500,000, in each case, calculated on a pro forma basis after giving effect
to the consummation of the Merger, and
(ii) certifying that (A) the maximum purchase
price paid with respect to the Merger does not exceed $502,500,000 (as such
amount may be adjusted in accordance with the terms and conditions of the
Merger Agreement, with any amendment to the terms and conditions of the Merger
Agreement relating to such an adjustment to be approved by the Administrative
Agent); (B) the condition set forth in Section 3.1(f) hereof have been
satisfied and (C) each of the conditions precedent to the consummation of the
Merger has been satisfied.
Section 3.2 Conditions Precedent to Each Advance. The obligation
of the Lenders to make, Convert or Continue each Advance on or after the
Agreement Date is subject to the fulfillment of each of the following
conditions immediately prior to or contemporaneously with such Advance:
(a) All of the representations and warranties of the
Borrower under this Agreement and the other Loan Documents (including, without
limitation, all representations and warranties with respect to the Borrower's
Subsidiaries), which, pursuant to Section 4.2 hereof,
52
are made at and as of the time of such Advance (except to the extent previously
fulfilled in accordance with the terms hereof and to the extent relating
specifically to a specific prior date), shall be true and correct at such time
in all material respects, both before and after giving effect to the
application of the proceeds of such Advance, and after giving effect to any
updates to information provided to the Lenders in accordance with the terms of
such representations and warranties, and no Default hereunder shall then exist
or be caused thereby.
(b) With respect to Advances which, if funded, would
increase the aggregate principal amount of the Loans outstanding hereunder, the
Administrative Agent shall have received a duly executed Request for Advance.
(c) The Administrative Agent and the Lenders shall have
received all such other certificates, reports, statements, opinions of counsel
(if such Advance is in connection with an Acquisition) or other documents as
the Administrative Agent or any Lender may reasonably request.
(d) With respect to any Advance relating to any
Acquisition or the formation of any Subsidiary which is permitted hereunder,
the Administrative Agent and the Lenders shall have received certified
documents and instruments relating to such Acquisition or such formation of a
new Subsidiary as are described in Section 5.13 hereof or otherwise required
herein.
(e) No event shall have occurred and no condition exist,
in each case, which, in the reasonable judgment of the Required Lenders, has
had or could be expected to have a Materially Adverse Effect.
(f) On the date of such Advance, after giving effect to
the Advance requested, the Borrower shall be in compliance on a pro forma basis
with the covenants set forth in Sections 7.8, 7.9, 7.10 and 7.11 hereof and
that no Default or Event of Default shall be caused hereunder by such Advance.
The acceptance of proceeds of any Advance which would increase the
aggregate principal amount of Loans outstanding shall be deemed to be a
representation and warranty by the Borrower as to compliance with this Section
3.2 on the date any such Loan is made.
Section 3.3 Conditions Precedent to Issuance of Letters of
Credit. The obligation of the Issuing Bank to issue each Letter of Credit
hereunder is subject to the fulfillment of each of the following conditions
immediately prior to or contemporaneously with such issuance:
(a) All of the representations and warranties of the
Borrower under this Agreement and the other Loan Documents (including, without
limitation, all representations and warranties with respect to the Borrower's
Subsidiaries), which, pursuant to Section 4.2 hereof, are made at and as of the
time of such Advance (except to the extent previously fulfilled in accordance
with the terms hereof and to the extent relating specifically to a specific
prior date), shall be true and correct at such time in all material respects,
both before and after giving effect to the issuance of the Letter of Credit,
and after giving effect to any updates to information
53
provided to the Lenders in accordance with the terms of such representations
and warranties, and no Default hereunder shall then exist or be caused thereby;
(b) The Administrative Agent shall have received a duly
executed Request for Issuance of Letter of Credit;
(c) The Administrative Agent and the Lenders shall have
received all such other certificates, reports, statements, opinions of counsel
(if such Letter of Credit is in connection with an Acquisition) or other
documents as the Administrative Agent or any Lender may reasonably request;
(d) No event shall have occurred and no condition exist,
in each case, which, in the reasonable judgment of the Required Lenders, has
had or could be expected to have a Materially Adverse Effect.
(e) On the date of issuance of such Letter of Credit,
after giving effect to the Letter of Credit requested, the Borrower shall be in
compliance on a pro forma basis with the covenants set forth in Sections 7.8,
7.9, 7.10 and 7.11 of this Agreement and that no Default or Event of Default
shall be caused hereunder by such Letter of Credit.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties. The Borrower hereby
agrees, represents and warrants, upon the Agreement Date, in favor of the
Administrative Agent and each Lender, that:
(a) Organization; Ownership; Power; Qualification. The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Georgia. The Borrower has the corporate power
and authority to own its properties and to carry on its business as now being
and as proposed hereafter to be conducted. Each Subsidiary of the Borrower is a
Person duly organized, validly existing and in good standing under the laws of
the state of its incorporation or formation and has the power and authority to
own its properties and to carry on its business as now being and as proposed
hereafter to be conducted. The Borrower and its Subsidiaries are duly
qualified, in good standing and authorized to do business in each jurisdiction
in which the character of their respective properties or the nature of their
respective businesses requires such qualification or authorization, except
where failure to be so qualified, in the aggregate, could not reasonably be
expected to have a Materially Adverse Effect.
(b) Authorization; Enforceability. The Borrower has the
corporate power and has taken all necessary corporate action to authorize it to
borrow hereunder, and the Borrower has the corporate power and has taken all
necessary corporate action to execute, deliver and perform this Agreement and
each of the other Loan Documents to which it is a party in accordance with
their respective terms, and to consummate the transactions contemplated hereby
54
and thereby. This Agreement has been duly executed and delivered by the
Borrower and is, and each of the other Loan Documents to which the Borrower is
party is, a legal, valid and binding obligation of the Borrower, enforceable
against the Borrower, in accordance with its terms, subject, as to enforcement
of remedies, to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity.
(c) Subsidiaries: Authorization; Enforceability. The
Borrower's Subsidiaries, and the Borrower's direct and indirect ownership
thereof, in each case as of the Agreement Date, are as set forth on Schedule 4
attached hereto, and the Borrower has the unrestricted right to vote the issued
and outstanding Ownership Interests of the Subsidiaries shown thereon; such
Ownership Interests of such Subsidiaries have been duly authorized and issued
and are fully paid and nonassessable. Each Subsidiary of the Borrower has the
power and has taken all necessary action to authorize it to execute, deliver
and perform each of the Loan Documents to which it is a party in accordance
with their respective terms and to consummate the transactions contemplated by
this Agreement and by such Loan Documents. Each of the Loan Documents to which
any Subsidiary of the Borrower is party is a legal, valid and binding
obligation of such Subsidiary enforceable against such Subsidiary in accordance
with its terms, subject, as enforcement of remedies, to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity. The Borrower's Ownership
Interest in each of its Subsidiaries represents a direct or indirect
controlling interest of such Subsidiary for purposes of directing or causing
the direction of the management and policies of each Subsidiary.
(d) Compliance with Other Loan Documents and
Contemplated Transactions. The execution, delivery and performance, in
accordance with their respective terms, by the Borrower of this Agreement and
the Notes, and by the Borrower and its Subsidiaries of each of the other Loan
Documents to which they are respectively party, and the consummation of the
transactions contemplated hereby and thereby, do not and will not (i) require
any consent or approval, governmental or otherwise, not already obtained, (ii)
violate any Applicable Law respecting the Borrower or any of its Subsidiaries,
(iii) conflict with, result in a breach of, or constitute a default under the
certificate or articles of incorporation or by-laws or partnership agreements
or operating agreements or trust agreements, as the case may be, as amended, of
the Borrower or of any of its Subsidiaries, or under any material Operating
Agreement, or any other material indenture, agreement, or other instrument, to
which the Borrower or any of its Subsidiaries is a party or by which any of
them or their respective properties may be bound, including, without
limitation, the Subordinated Note Indenture, or (iv) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by the Borrower or any of its Subsidiaries, except
for Permitted Liens.
(e) Business. The Borrower, together with its
Subsidiaries, is engaged in the business of owning and operating the Stations,
Newspapers, the Porta-Phone Page Business, the Satellite Broadcasting Business
and other media-related businesses.
(f) Licenses; Operating Agreements.
55
(i) Each of the Borrower and its Subsidiaries
has all requisite power and authority, material Operating Agreements and
Licenses to own and operate its properties and to carry on its businesses as
now conducted and as proposed to be conducted. Schedule 3 annexed hereto, as it
may be supplemented, correctly describes each of the Stations, the Newspapers,
the Porta-Phone Page Business and the Satellite Broadcasting Business and sets
forth all of the material Operating Agreements and Licenses of the Borrower and
its Subsidiaries and correctly sets forth the termination date, if any, of each
such Operating Agreements and License. A true, correct and complete copy of
each material Operating Agreement and License has been made available to the
Administrative Agent. Each material Operating Agreement and License was duly
and validly issued pursuant to procedures which comply in all material respects
with all requirements of Applicable Law. As of the Agreement Date and at all
times thereafter, the Borrower and its Subsidiaries have the right to use all
material Licenses required in the ordinary course of business for all Stations,
the Newspapers, the Porta-Phone Paging Business and the Satellite Broadcasting
Business, and each such License is in full force and effect. Each of the
Borrower and it Subsidiaries has taken all material actions and performed all
of its material obligations that are necessary to maintain all material
Licenses without adverse modification or impairment. Except as shown on
Schedule 3, no event has occurred which (i) results in, or after notice or
lapse of time or both would result in, revocation, suspension, adverse
modification, non-renewal, impairment, restriction or termination of or any
order of forfeiture with respect to, any material License or (ii) materially
and adversely affects or could reasonably be expected in the future to
materially adversely affect any of the rights of the Borrower or any of its
Subsidiaries thereunder. Except as set forth on Schedule 3, each FCC License is
held by a License Sub. Except as set forth in Schedule 3, none of the FCC
Licenses requires that any present stockholder, director, officer or employee
of the Borrower or any of its Subsidiaries remain a stockholder or employee of
such Person, or that any transfer of control of such Person must be approved by
any public or governmental body other than the FCC.
(ii) Except as shown on Schedule 3, neither the
Borrower nor any of its Subsidiaries is a party to or has knowledge of any
investigation, notice of apparent liability, violation, forfeiture or other
order or complaint issued by or before any court or regulatory body, including
the FCC, or of any other proceedings (other than proceedings relating to the
radio or television industries generally) which could in any manner materially
threaten or adversely affect the validity or continued effectiveness of the
Licenses of any such Person. Neither the Borrower nor any of its Subsidiaries
has any reason to believe that any material Licenses listed and described in
Schedule 3 will not be renewed in the ordinary course. Each of the Borrower and
its Subsidiaries, as applicable, (a) has duly filed in a timely manner all
material filings, reports, applications, documents, instruments and information
required to be filed by it under the Communication Act or pursuant to FCC
Regulations or requests of any regulatory body having jurisdiction over any of
its Licenses, (b) has submitted to the FCC on a timely basis all required equal
employment opportunity reports, and (c) is in compliance in all material
respects with the Communications Act, including all FCC Regulations relating to
the broadcast of television signals, all FCC Regulations concerning the limits
on the duration of advertising in children's programming and the record keeping
obligations relating to such advertising, the Children's Television Act and all
FCC Regulations promulgated thereunder and all equal employment
opportunity-related FCC Regulations. The Borrower and its Subsidiaries maintain
appropriate
56
public files at the Stations, the Porta-Phone Paging Business and the Satellite
Broadcasting Business in a manner that complies in all material respects with
all FCC Regulations.
(iii) The Ownership Reports filed by the Borrower
and its Subsidiaries with the FCC are true, correct and complete in all
material respects and there have been no changes in the ownership of the
Borrower or any Subsidiary of the Borrower since the filing of such Ownership
Reports other than as described in information filed with the FCC and made
available for examination by the Administrative Agent.
(g) Compliance with Law. The Borrower and its
Subsidiaries are in compliance with all Applicable Law, except where the
failure to be in compliance would not individually or in the aggregate have a
Materially Adverse Effect.
(h) Title to Assets. The Borrower and its Subsidiaries
have good, legal and marketable title to, or a valid leasehold interest in, all
of their respective material assets. None of the properties or assets of the
Borrower or any of its Subsidiaries is subject to any Liens, except for
Permitted Liens. Except for financing statements evidencing Permitted Liens, no
financing statement under the Uniform Commercial Code as in effect in any
jurisdiction and no other filing which names the Borrower or any of its
Subsidiaries as debtor or which covers or purports to cover any of the assets
of the Borrower or any of its Subsidiaries is currently effective and on file
in any state or other jurisdiction, and neither the Borrower nor any of its
Subsidiaries has signed any such financing statement or filing or any security
agreement authorizing any secured party thereunder to file any such financing
statement or filing.
(i) Litigation. Except as set forth on Schedule 5
hereto, there is no action, suit, proceeding or investigation pending against,
or, to the knowledge of the Borrower, threatened against or in any other manner
relating adversely to, the Borrower or any of its Subsidiaries or any of their
respective properties, including, without limitation, the Licenses, in any
court or before any arbitrator of any kind or before or by any governmental
body which could reasonably be expected to have a Materially Adverse Effect. No
action, suit, proceeding or investigation (i) calls into question the validity
of this Agreement or any other Loan Document, or (ii) individually or
collectively involves the possibility of any judgment or liability not fully
covered by insurance which, if determined adversely to the Borrower or any of
its Subsidiaries, would have a Materially Adverse Effect.
(j) Taxes. All federal, state and other tax returns of
the Borrower, each of its Subsidiaries required by law to be filed have been
duly filed and all federal, state and other taxes, including, without
limitation, withholding taxes, assessments and other governmental charges or
levies required to be paid by the Borrower or by any of its Subsidiaries or
imposed upon the Borrower or any of its Subsidiaries or any of their respective
properties, income, profits or assets, which are due and payable, have been
paid, except any such taxes (i) (A) the payment of which the Borrower or any of
its Subsidiaries is diligently contesting in good faith by appropriate
proceedings, (B) for which adequate reserves have been provided on the books of
the Borrower or the Subsidiary of the Borrower involved, and (C) as to which no
Lien other than a Permitted Lien has attached and no foreclosure, distraint,
sale or similar proceedings have been commenced, or (ii) which may result from
audits not yet conducted. The charges, accruals and
57
reserves on the books of the Borrower and each of its Subsidiaries in respect
of taxes are, in the reasonable judgment of the Borrower, adequate.
(k) Financial Statements; Projections.
(i) The Borrower has furnished or caused to be
furnished to the Administrative Agent and the Lenders a Form 10-K for the
Borrower and its Subsidiaries on a consolidated basis for the fiscal year ended
December 31, 2001, audited financial statements for the fiscal year ended
December 31, 2001 and unaudited for the quarter ended June 30, 2002 and the
months ended July 31, 2002 and August 31, 2002, which, together with other
financial statements furnished to the Lenders subsequent to the Agreement Date
have been prepared in accordance with GAAP and present fairly in all material
respects the financial position of the Borrower and its Subsidiaries on a
consolidated and consolidating basis, as the case may be, on and as at such
dates and the results of operations for the periods then ended (subject, in the
case of unaudited financial statements, to normal year-end and audit
adjustments). None of the Borrower or any of its Subsidiaries has any material
liabilities, contingent or otherwise, other than as disclosed in the financial
statements most recently delivered on the Agreement Date or pursuant to Section
6.1, 6.2 or 6.3 hereof, and there are no material unrealized losses of the
Borrower and its Subsidiaries taken as a whole and no material anticipated
losses of the Borrower and its Subsidiaries taken as a whole other than those
which have been previously disclosed in writing to the Administrative Agent and
the Lenders and identified as such.
(ii) The Borrower has delivered to the
Administrative Agent and the Lenders projections for fiscal years 2003 through
2010. Such projections were prepared by the Borrower in good faith on the basis
of assumptions the Borrower believes were reasonable in light of the conditions
existing at the time of preparation thereof and remain reasonable as of the
date hereof, and as of the date hereof no facts which are known to the Borrower
which the Borrower believes would cause a material adverse change in such
projections.
(l) No Material Adverse Change. There has occurred no
event since December 31, 2001 which has or which could reasonably be expected
to have a Materially Adverse Effect.
(m) ERISA. The Borrower and each of its Subsidiaries and
each of their respective Plans are in material compliance with ERISA and the
Code, and neither the Borrower nor any of its ERISA Affiliates, including its
Subsidiaries, has incurred any material accumulated funding deficiency with
respect to any such Plan within the meaning of ERISA or the Code. Neither the
Borrower nor any of its Subsidiaries has made any promises of retirement or
other benefits to employees, except as set forth in the Plans, in written
agreements with such employees, or in the Borrower's employee handbook and
memoranda to employees. Neither the Borrower nor any of its ERISA Affiliates,
including its Subsidiaries, has incurred any material liability to PBGC in
connection with any such Plan. The assets of each such Plan which is subject to
Title IV of ERISA are sufficient to provide the benefits under such Plan, the
payment of which PBGC would guarantee if such Plan were terminated, and such
assets are also sufficient to provide all other "benefit liabilities" (within
the meaning of Section 4041 of ERISA) due under the Plan upon termination. No
Reportable Event has occurred and is continuing with
58
respect to any such Plan. No such Plan or trust created thereunder, or party in
interest (as defined in Section 3(14) of ERISA), or any fiduciary (as defined
in Section 3(21) of ERISA), has engaged in a "prohibited transaction" (as such
term is defined in Section 406 of ERISA or Section 4975 of the Code) which
would subject such Plan or any other Plan of the Borrower or any of its
Subsidiaries, any trust created thereunder, or any such party in interest or
fiduciary, or any party dealing with any such Plan or any such trust, to the
tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code. Neither the Borrower nor any of its ERISA Affiliates,
including its Subsidiaries, is or has been obligated to make any payment to a
Multiemployer Plan.
(n) Compliance with Regulations T, U and X. Neither the
Borrower nor any of its Subsidiaries is engaged principally or as one of its
important activities in the business of extending credit for the purpose of
purchasing or carrying, and neither the Borrower nor any of its Subsidiaries
owns or presently intends to acquire, any "margin security" or "margin stock"
(the "margin stock") as defined in Regulations T, U, and X (12 C.F.R. Parts
220, 221 and 224) of the Board of Governors of the Federal Reserve System (the
"Fed Regulations"). None of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin stock or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry margin stock or for any other purpose which might
constitute this transaction a "purpose credit" within the meaning of said
Regulations. The Borrower has not taken, caused or authorized to be taken, and
will not take any action which might cause this Agreement or the Notes to
violate any Fed Regulation or any other regulation of the Board of Governors of
the Federal Reserve System or to violate the Securities Exchange Act of 1934,
in each case as now in effect or as the same may hereafter be in effect. If so
requested by the Administrative Agent, the Borrower will furnish the
Administrative Agent with (i) a statement or statements in conformity with the
requirements of the applicable Federal Reserve Forms referred to in Regulation
U of said Board of Governors and (ii) other documents evidencing its compliance
with the margin regulations, reasonably requested by the Administrative Agent.
Neither the making of the Loans nor the use of proceeds thereof will violate,
or be inconsistent with, the provisions of any Fed Regulation.
(o) Investment Company Act. Neither the Borrower nor any
of its Subsidiaries is required to register under the provisions of the
Investment Company Act of 1940, as amended, and neither the entering into or
performance by the Borrower and its Subsidiaries of this Agreement and the Loan
Documents nor the issuance of the Notes violates any provision of such Act or
requires any consent, approval or authorization of, or registration with, the
Securities and Exchange Commission or any other governmental or public body or
authority pursuant to any provisions of such Act.
(p) Governmental Regulation. Neither the Borrower nor any
of its Subsidiaries is required to obtain any consent, approval, authorization,
permit or license which has not already been obtained from, or effect any filing
or registration which has not already been effected with, any federal, state or
local regulatory authority in connection with the execution and delivery of this
Agreement or any other Loan Document. Neither the Borrower nor any of its
Subsidiaries is required to obtain any consent, approval, authorization, permit
or license which has not already been obtained from, or effect any filing or
registration which has
59
not already been effected with, any federal, state or local regulatory authority
in connection with the performance, in accordance with their respective terms,
of this Agreement or any other Loan Document, other than filing of appropriate
Uniform Commercial Code financing statements and mortgages.
(q) Absence of Default, Etc. The Borrower and its
Subsidiaries are in material compliance in all respects with all of the
provisions of their respective partnership agreements, operating agreements,
certificates or articles of incorporation and by-laws, as the case may be, and
no event has occurred or failed to occur (including, without limitation, any
matter which could create a Default hereunder by cross-default) which has not
been remedied or waived, the occurrence or non-occurrence of which constitutes,
(i) a Default or (ii) a material default by the Borrower or any of its
Subsidiaries under any indenture, agreement or other instrument relating to
Indebtedness of the Borrower or any of its Subsidiaries in the amount of
$1,000,000.00 or more in the aggregate, any material license, or any judgment,
decree or order to which the Borrower or any of its Subsidiaries is a party or
by which the Borrower or any of its Subsidiaries or any of their respective
properties may be bound or affected.
(r) Accuracy and Completeness of Information. All
information, reports, prospectuses and other papers and data relating to the
Borrower or any of its Subsidiaries and furnished by or on behalf of the
Borrower or any of its Subsidiaries to the Administrative Agent or the Lenders,
taken as a whole, were, at the time furnished, true, complete and correct in
all material respects to the extent necessary to give the Administrative Agent
and the Lenders true and accurate knowledge of the subject matter. Any
projections and pro forma financial information contained in such materials are
based upon good faith estimates and assumptions believed by the Borrower to be
reasonable and attainable at the time made, it being recognized by the Lenders
that such projections as to future events are not to be viewed as facts and
that actual results during the period or periods covered by any such
projections may differ from the projected results.
(s) Agreements with Affiliates. Except for agreements or
arrangements with Affiliates wherein the Borrower or one or more of its
Subsidiaries provides services to such Affiliates for fair consideration or
which are set forth on Schedule 6 attached hereto, neither the Borrower nor any
of its Subsidiaries has (i) any written agreements or binding arrangements of
any kind with any Affiliate or (ii) any management or consulting agreements of
any kind with any Affiliate.
(t) Payment of Wages. The Borrower and each of its
Subsidiaries are in compliance with the Fair Labor Standards Act, as amended,
in all material respects, and to the knowledge of the Borrower and each of its
Subsidiaries, such Persons have paid all minimum and overtime wages required by
law to be paid to their respective employees.
(u) Priority. The Security Interest is a valid and
perfected first priority security interest (subject to Permitted Liens) in the
Collateral in favor of the Administrative Agent, for the benefit of itself and
the Lenders, securing, in accordance with the terms of the Security Documents,
the Obligations, and the Collateral is subject to no Liens other than Permitted
Liens. The Liens created by the Security Documents are enforceable as security
for
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the Obligations in accordance with their terms with respect to the Collateral
subject, as to enforcement of remedies, to the following qualifications: (i) an
order of specific performance and an injunction are discretionary remedies and,
in particular, may not be available where damages are considered an adequate
remedy at law, and (ii) enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other similar laws affecting
enforcement of creditors' rights generally (insofar as any such law relates to
the bankruptcy, insolvency or similar event of the Borrower or any of its
Subsidiaries, as the case may be).
(v) Indebtedness. Except as described on Schedule 7
attached hereto none of the Borrower nor any of its Subsidiaries has
outstanding, as of the Agreement Date, and after giving effect to the initial
Advances hereunder on the Agreement Date, any Indebtedness.
(w) Solvency. As of the Agreement Date and after giving
effect to the transactions contemplated by the Loan Documents (i) the property
of the Borrower, at a fair valuation, will exceed its debt; (ii) the capital of
the Borrower will not be unreasonably small to conduct its business; (iii) the
Borrower will not have incurred debts, or have intended to incur debts, beyond
its ability to pay such debts as they mature; and (iv) the present fair salable
value of the assets of the Borrower will be greater than the amount that will
be required to pay its probable liabilities (including debts) as they become
absolute and matured. For purposes of this Section 4.1(w), "debt" means any
liability on a claim, and "claim" means (i) the right to payment, whether or
not such right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, undisputed, legal, equitable, secured or
unsecured, or (ii) the right to an equitable remedy for breach of performance
if such breach gives rise to a right to payment, whether or not such right to
an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, undisputed, secured or unsecured.
(x) Patents, Trademarks, Franchises, etc. The Borrower
and each of its Subsidiaries owns, possesses, or has the right to use all
necessary patents, trademarks, trademark rights, trade names, trade name
rights, service marks, copyrights and franchises, and rights with respect
thereof, necessary to conduct its respective business as now conducted, without
known conflict with any patent, trademark, trade name, service xxxx, franchise,
or copyright of any other Person, and in each case, subject to no mortgage,
pledge, Lien, lease, encumbrance, charge, security interest, title retention
agreement or option, other than Permitted Liens. All such patents, trademarks,
trademark rights, trade names, trade name rights, service marks, copyrights,
and franchises are listed as of the Agreement Date on Schedule 8 attached
hereto and are in full force and effect, the holder thereof is in full
compliance in all material respects with all of the provisions thereof, and no
such asset or agreement is subject to any pending or, to the best of the
Borrower's knowledge, threatened attack or revocation.
(y) Collective Bargaining. None of the employees of the
Borrower or any of its Subsidiaries is a party to any collective bargaining
agreement with the Borrower or any of its Subsidiaries except as set forth on
Schedule 9 attached hereto, and, to the best knowledge of the Borrower and its
officers, there are no material grievances, disputes, or controversies with any
union or any other organization of the employees of the Borrower or any of its
Subsidiaries or
61
threats of strikes, work stoppages, or any asserted pending demands for
collective bargaining by any union or other organization except as set forth on
Schedule 9 attached hereto.
(z) Environmental Protection.
(i) Except as set forth in Schedule 10 attached
hereto, neither the Borrower nor any of its Subsidiaries nor any of their
respective Real Property or operations are subject to any outstanding written
order, consent decree or settlement agreement with any Person relating to (A)
any Environmental Law, (B) any Environmental Claim or (C) any Hazardous
Materials Activity;
(ii) Neither the Borrower nor any of its
Subsidiaries has received any letter or request for information under Section
104 of the Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. ss. 9604) or any comparable state law.
(iii) There are no and, to the Borrower's
knowledge, have been no conditions, occurrences, or Hazardous Materials
Activities which could reasonably be expected to form the basis of an
Environmental Claim against the Borrower or any of its Subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a
Materially Adverse Effect;
(iv) Neither the Borrower nor any of its
Subsidiaries, nor, to the Borrower's knowledge, any predecessor of the Borrower
or any of its Subsidiaries has filed any notice under any Environmental Law
indicating past or present treatment of Hazardous Materials on any Real
Property, and neither the Borrower nor any of its Subsidiaries' operations
involves the generation, transportation, treatment, storage or disposal of
hazardous waste (other than Hazardous Materials used in the ordinary course of
business, the use of which is immaterial and not reasonably likely to
materially adversely affect the Real Property or have a Materially Adverse
Effect), as defined under 40 C.F.R. Parts 260-270 or any state equivalent; and
(v) Compliance with all current requirements
pursuant to or under Environmental Laws will not, individually or in the
aggregate, have a reasonable possibility of giving rise to a Materially Adverse
Effect.
Notwithstanding anything in this Section 4.1(z) to the contrary, no
event or condition has occurred or is occurring with respect to the Borrower or
any of its Subsidiaries relating to any Environmental Law, any release of
Hazardous Materials, or any Hazardous Materials Activity which individually or
in the aggregate has had or could reasonably be expected to have a Materially
Adverse Effect.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement and any other Loan
Document shall be deemed to be made, and shall be true and correct in all
material respects, at and as of the Agreement Date and on the date of the
making, Continuation or Conversion of each Advance or issuance of Letter of
Credit, except to the extent relating specifically to the Agreement Date. All
representations and warranties made under this Agreement and the other Loan
Documents shall survive, and not be
62
waived by, the execution hereof by the Lenders and the Administrative Agent,
any investigation or inquiry by any Lender or the Administrative Agent, or the
making, Continuation or Conversion of any Advance under this Agreement.
ARTICLE 5
General Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Required
Lenders, or such greater number of Lenders as may be expressly provided herein,
shall otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. Except
as permitted under Section 7.4 hereof, the Borrower will, and will cause each
of its Subsidiaries to:
(a) preserve and maintain its existence, and its
material rights, franchises, Licenses and privileges; and
(b) qualify and remain qualified and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification or authorization, except for
such failure to so qualify and be so authorized as could not reasonably be
expected to have a Materially Adverse Effect.
Section 5.2 Business; Compliance with Applicable Law. The
Borrower will, and will cause each of its Subsidiaries to, (a) engage in the
business of owning and operating Stations, Newspapers, the Porta-Phone Paging
Business, the Satellite Broadcasting Business and other media-related
businesses, and (b) comply in all material respects with the requirements of
all Applicable Law.
Section 5.3 Maintenance of Properties. The Borrower will, and
will cause each of its Subsidiaries to, maintain or cause to be maintained in
the ordinary course of business in good repair, working order and condition
(reasonable wear and tear excepted) all properties used in their respective
businesses (whether owned or held under lease), other than obsolete equipment
or unused assets, and from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The
Borrower will, and will cause each of its Subsidiaries on a consolidated and
consolidating basis to, maintain a system of accounting established and
administered in accordance with GAAP, keep adequate records and books of
account in which complete entries will be made in accordance with GAAP and
reflecting all transactions required to be reflected by GAAP and keep accurate
and complete records of their respective properties and assets. The Borrower
and its Subsidiaries will maintain a fiscal year ending on December 31st.
63
Section 5.5 Insurance. The Borrower will, and will cause each of
its Subsidiaries to:
(a) maintain insurance, including, without limitation,
business interruption coverage and public liability coverage insurance from
responsible companies in such amounts and against such risks to the Borrower
and each of its Subsidiaries as is prudent for similarly situated companies
engaged in the television or satellite broadcast, portable telephone paging,
newspaper or other media related industry, as applicable, and as is reasonably
acceptable to the Administrative Agent;
(b) keep their respective assets insured by insurers on
terms and in a manner reasonably acceptable to the Administrative Agent against
loss or damage by fire, theft, burglary, loss in transit, explosions and
hazards insured against by extended coverage, in amounts which are prudent for
companies in similarly situated industries and reasonably satisfactory to the
Administrative Agent, all premiums thereon to be paid by the Borrower and its
Subsidiaries; and
(c) require that each insurance policy provide for at
least thirty (30) days' prior written notice to the Administrative Agent of any
termination of or proposed cancellation or nonrenewal of such policy, and name
the Administrative Agent as additional named lender loss payee and, as
appropriate, additional insured, to the extent of the Obligations.
In addition to the foregoing, in the event that any insurer
distributes insurance proceeds, a condemnation award, or any other disbursement
in connection with any of the foregoing insurance policies, the Administrative
Agent is authorized to collect such distribution and, if received by the
Borrower or any of its Subsidiaries, such distribution shall be paid over to
the Administrative Agent; provided that all such proceeds shall be paid over to
the Borrower unless an Event of Default has occurred and is continuing. Any
such distribution shall be applied to prepay the Loans as set forth in Section
2.7(b)(iii) hereof.
Section 5.6 Payment of Taxes and Claims. The Borrower will, and
will cause each of its Subsidiaries to, pay and discharge all taxes, including,
without limitation, withholding taxes, assessments and governmental charges or
levies required to be paid by them or imposed upon them or their income or
profits or upon any properties belonging to them, prior to the date on which
penalties attach thereto, and all lawful claims for labor, materials and
supplies which, if unpaid, might become a Lien or charge upon any of their
properties; provided, however, except that no such tax, assessment, charge,
levy or claim need be paid which is being diligently contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on the appropriate books, but only so long as such tax, assessment,
charge, levy or claim does not become a Lien or charge other than a Permitted
Lien and no foreclosure, distraint, sale or similar proceedings shall have been
commenced. The Borrower will, and will cause each of its Subsidiaries to,
timely file all information returns required by federal, state or local tax
authorities.
Section 5.7 Compliance with ERISA.
(a) The Borrower will, and will cause its Subsidiaries
to, make all contributions to any Employee Pension Plan when such contributions
are due and not incur any
64
"accumulated funding deficiency" within the meaning of Section 412(a) of the
Code, whether or not waived, and will otherwise comply with the requirements of
the Code and ERISA with respect to the operation of all Plans, except to the
extent that the failure to so comply could not have a Materially Adverse
Effect.
(b) The Borrower will furnish to Administrative Agent
(i) within thirty (30) days after any officer of the Borrower obtains knowledge
that a "prohibited transaction" (within the meaning of Section 406 of ERISA or
Section 4975 of the Code) has occurred with respect to any material Plan of the
Borrower or its ERISA Affiliates, including its Subsidiaries, that any
Reportable Event has occurred with respect to any Employee Pension Plan or that
PBGC has instituted or will institute proceedings under Title IV of ERISA to
terminate any Employee Pension Plan or to appoint a trustee to administer any
Employee Pension Plan, a statement setting forth the details as to such
prohibited transaction, Reportable Event or termination or appointment
proceedings and the action which it (or any other Employee Pension Plan sponsor
if other than the Borrower) proposes to take with respect thereto, together
with a copy of the notice of such Reportable Event given to PBGC if a copy of
such notice is available to the Borrower, any of its Subsidiaries or any of its
ERISA Affiliates, (ii) promptly after receipt thereof, a copy of any notice the
Borrower, any of its Subsidiaries or any of its ERISA Affiliates or the sponsor
of any Plan receives from PBGC, or the Internal Revenue Service or the
Department of Labor which sets forth or proposes any action or determination
with respect to such Plan, (iii) promptly after the filing thereof, any annual
report required to be filed pursuant to ERISA in connection with each Plan
maintained by the Borrower or any of its ERISA Affiliates, including the
Subsidiaries, and (iv) promptly upon the Administrative Agent's request
therefor, such additional information concerning any such Plan as may be
reasonably requested by the Administrative Agent.
(c) The Borrower will promptly notify the Administrative
Agent of any excise taxes which have been assessed or which the Borrower, any
of its Subsidiaries or any of its ERISA Affiliates has reason to believe may be
assessed against the Borrower, any of its Subsidiaries or any of its ERISA
Affiliates by the Internal Revenue Service or the Department of Labor with
respect to any Plan of the Borrower or its ERISA Affiliates, including its
Subsidiaries.
(d) Within the time required for notice to the PBGC
under Section 302(f)(4)(A) of ERISA, the Borrower will notify the
Administrative Agent of any Lien arising under Section 302(f) of ERISA in favor
of any Plan of the Borrower or its ERISA Affiliates, including its
Subsidiaries.
(e) The Borrower will not, and will not permit any of
its Subsidiaries or any of its ERISA Affiliates to take any of the following
actions or permit any of the following events to occur if such action or event
together with all other such actions or events would subject the Borrower, any
of its Subsidiaries, or any of its ERISA Affiliates to any tax, penalty, or
other liabilities which could have a Materially Adverse Effect:
65
(i) engage in any transaction in connection
with which the Borrower, any of its Subsidiaries or any ERISA Affiliate could
be subject to either a civil penalty assessed pursuant to Section 502(i) of
ERISA or a tax imposed by Section 4975 of the Code;
(ii) terminate any Employee Pension Plan in a
manner, or take any other action, which could result in any liability of the
Borrower, any of its Subsidiaries or any ERISA Affiliate to the PBGC;
(iii) fail to make full payment when due of all
amounts which, under the provisions of any Plan, the Borrower, any of its
Subsidiaries or any ERISA Affiliate is required to pay as contributions
thereto, or permit to exist any accumulated funding deficiency within the
meaning of Section 412(a) of the Code, whether or not waived, with respect to
any Employee Pension Plan; or
(iv) permit the present value of all benefit
liabilities under all Employee Pension Plans which are subject to Title IV of
ERISA to exceed the present value of the assets of such Plans allocable to such
benefit liabilities (within the meaning of Section 4041 of ERISA), except as
may be permitted under actuarial funding standards adopted in accordance with
Section 412 of the Code.
Section 5.8 Visits and Inspections. The Borrower will, and will
cause each of its Subsidiaries to, permit representatives of the Administrative
Agent and any of the Lenders, prior to the occurrence of an Event of Default
upon reasonable notice and at any time upon the occurrence and during the
continuance of an Event of Default, to (i) visit and inspect the properties of
the Borrower or any of its Subsidiaries during business hours, (ii) inspect and
make extracts from and copies of their respective books and records, and (iii)
discuss with their respective principal officers their respective businesses,
assets, liabilities, financial positions, results of operations and business
prospects. The Borrower and each of its Subsidiaries will also permit
representatives of the Administrative Agent and any of the Lenders to discuss
with their respective accountants the Borrower's and its Subsidiaries'
businesses, assets, liabilities, financial positions, results of operations and
business prospects.
Section 5.9 Payment of Indebtedness; Loans. Subject to any
provisions herein or in any other Loan Document, the Borrower will, and will
cause each of its Subsidiaries to, pay any and all of their respective
Indebtedness when and as it becomes due, other than amounts diligently disputed
in good faith and for which adequate reserves have been set aside in accordance
with GAAP.
Section 5.10 Use of Proceeds. The Borrower will use the aggregate
proceeds of all Advances under the Loans directly or indirectly: (a) to
refinance Indebtedness under the Prior Loan Agreement; (b) to finance a portion
of the consideration payable by the Borrower to consummate the Merger; (c) to
finance a portion of the consideration payable by the Borrower in respect of
the Reno Acquisition; and (d) to the extent permitted hereunder, for working
capital needs, Capital Expenditures, Acquisitions, Investments, Restricted
Payments, Restricted Purchases and other general corporate purposes of the
Borrower and its Subsidiaries which do not otherwise conflict with this Section
5.10 (including, without limitation, the payment of the
66
fees and expenses incurred in connection with the execution and delivery of
this Agreement, the Reno Acquisition and the Merger). No proceeds of Advances
hereunder shall be used for the purchase or carrying or the extension of credit
for the purpose of purchasing or carrying, any margin stock within the meaning
of the Fed Regulations.
Section 5.11 Indemnity. The Borrower, for itself and on behalf of
each of its Subsidiaries, agrees to indemnify and hold harmless the Co-Lead
Arrangers, each Lender, the Administrative Agent, and each of their respective
affiliates, employees, representatives, shareholders, officers, directors,
agents, trustees and advisors (any of the foregoing shall be an "Indemnitee")
from and against any and all claims, obligations, judgments, suits,
liabilities, losses, damages, penalties, actions, reasonable attorneys' fees
and expenses and demands by any party, including, without limitation, the costs
of investigating and defending such claims, whether or not the Borrower, any
Subsidiary of the Borrower or the Person seeking indemnification is the
prevailing party: (a) resulting from any breach or alleged breach by the
Borrower or any Subsidiary of the Borrower of any representation or warranty
made under any Loan Document; or (b) otherwise arising out of (i) the
Commitments, the Loans or otherwise under this Agreement, any Loan Document or
any transaction contemplated hereby or thereby, including, without limitation,
the use of the proceeds of Loans hereunder in any fashion by the Borrower or
the performance of their respective obligations under the Loan Documents by the
Borrower or any of its Subsidiaries, (ii) allegations of any participation by
the Lenders and the Administrative Agent, or any of them, in the affairs of the
Borrower or any of its Subsidiaries, or allegations that any of them has any
joint liability with the Borrower or any of its Subsidiaries for any reason,
(iii) any claims against the Lenders and the Administrative Agent, or any of
them, by any shareholder or other investor in or lender to the Borrower or any
of its Subsidiaries, by any brokers or finders or investment advisers or
investment bankers retained by the Borrower or by any other third party,
arising out of the Commitments or otherwise under this Agreement; or (c) in
connection with taxes (not including federal or state income or franchise taxes
or other taxes based solely upon the revenues or income of such Persons), fees
and other charges payable in connection with the Loans, or the execution,
delivery and enforcement of this Agreement, the Security Documents, the other
Loan Documents and any amendments thereto or waivers of any of the provisions
thereof; unless the Person seeking indemnification hereunder is determined in
such case to have acted with gross negligence or willful misconduct, in any
case, by a final, non-appealable judicial order. The obligations of the
Borrower under this Section 5.11 are in addition to, and shall not otherwise
limit, any liabilities which the Borrower might otherwise have in connection
with any warranties or similar obligations of the Borrower in any other Loan
Document.
Section 5.12 Interest Rate Hedging. Within ninety (90) days
immediately following the Agreement Date, and at all times until the second
anniversary of the Agreement Date, the Borrower shall maintain one (1) or more
Interest Rate Hedge Agreements, or otherwise fix the interest rate, with
respect to the Borrower's interest obligations on an aggregate principal amount
of not less than fifty percent (50%) of Total Debt outstanding from time to
time as determined in a manner satisfactory to the Administrative Agent. Such
Interest Rate Hedge Agreements shall provide interest rate protection in
conformity with International Swap Dealers Association standards. All
Obligations of the Borrower to the Administrative Agent or any of the Lenders
or any of their Affiliates pursuant to any Interest Rate Hedge Agreement
permitted hereunder and
67
all Liens granted to secure such Obligations shall rank pari passu with all
other Obligations and Liens securing such other Obligations; and any Interest
Rate Hedge Agreement between the Borrower and any other Person shall be
unsecured.
Section 5.13 Covenants Regarding Formation of Subsidiaries and
Acquisitions; Partnership, Subsidiaries. At the time of (i) any Acquisition
permitted hereunder, (ii) the purchase by the Borrower or any of its
Subsidiaries of any interests in any Subsidiary of the Borrower, or (iii) the
formation of any new Subsidiary of the Borrower or any of its Subsidiaries
which is permitted under this Agreement, the Borrower will, and will cause its
Subsidiaries, as appropriate, to: (a) provide to the Administrative Agent an
executed Subsidiary Security Agreement for any new Subsidiary, which shall
authorize the filing of appropriate Uniform Commercial Code financing
statements, as well as an executed Subsidiary Guaranty for such new Subsidiary,
which shall constitute both Security Documents and Loan Documents for purposes
of this Agreement, as well as a loan certificate for such new Subsidiary,
substantially in the form of Exhibit K-2 attached hereto, together with
appropriate attachments; (b) pledge to the Administrative Agent all of the
Ownership Interests of such Subsidiary or Person which is acquired or formed,
beneficially owned by the Borrower or any of its Subsidiaries, as the case may
be, as additional Collateral for the Obligations to be held by the
Administrative Agent in accordance with the terms of the Borrower Pledge
Agreement, or a new Subsidiary Pledge Agreement and execute and deliver to the
Administrative Agent all such documentation for such pledge as, in the
reasonable opinion of the Administrative Agent, is appropriate; and (c) for
Acquisitions with a purchase price in excess of $30,000,000.00, provide
financial calculations specifically demonstrating the Borrower's pro forma
compliance with Sections 7.8, 7.9, 7.10 and 7.11 hereof after giving effect to
such Acquisition, financial projections for the Borrower for a five (5) year
period after the closing of such Acquisition after giving effect to such
Acquisition, including, without limitation, a statement of sources and uses of
funds for such Acquisition showing, among other things, the sources of
financing for such Acquisition, and demonstrating Borrower's ability to meet
its repayment obligations hereunder through the Maturity Date, certified by the
chief financial officer of the Borrower, together with a statement by such
Person that no Default or Event of Default exists or would be caused by such
Acquisition, and all other documentation, including one or more opinions of
counsel, which are satisfactory to the Administrative Agent and which in its
opinion is appropriate with respect to such Acquisition. Any document,
agreement or instrument executed or issued pursuant to this Section 5.13 shall
be a "Loan Document" for purposes of this Agreement.
Section 5.14 Payment of Wages. The Borrower will, and will cause
each of its Subsidiaries to, at all times comply in all material respects, with
the material requirements of the Fair Labor Standards Act, as amended,
including, without limitation, the provisions of such Act relating to the
payment of minimum and overtime wages as the same may become due from time to
time.
Section 5.15 Further Assurances. The Borrower will promptly cure,
or cause to be cured, defects in the creation and issuance of any of the Notes
and the execution and delivery of the Loan Documents (including this
Agreement), resulting from any acts or failure to act by the Borrower or any of
the its Subsidiaries or any employee or officer thereof. The Borrower, at its
expense, will promptly execute and deliver to the Administrative Agent and the
Lenders, or
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cause to be executed and delivered to the Administrative Agent and the Lenders,
all such other and further documents, agreements and instruments in compliance
with or accomplishment of the covenants and agreements of the Borrower and its
Subsidiaries in the Loan Documents, including, without limitation, this
Agreement, or to correct any omissions in the Loan Documents, or more fully to
state the obligations set out herein or in any of the Loan Documents, or to
obtain any consents, all as may be necessary or appropriate in connection
therewith and as may be reasonably requested.
Section 5.16 License Subs. At the time of any Acquisition
permitted hereunder, the Borrower shall cause each of the FCC Licenses being
acquired by the Borrower or any of its Subsidiaries to be transferred to one or
more License Subs, each of which License Subs shall have as its sole asset or
assets the FCC Licenses of the Borrower or any of its Subsidiaries and a
management agreement with the Borrower and such of its Subsidiaries subject to
such FCC License or FCC Licenses, such that from and after such applicable date
neither the Borrower nor its Subsidiaries (other than License Subs) shall hold
any FCC Licenses other than through one or more duly created and existing
License Subs. The Borrower shall not permit the License Subs to have any
business activities, operations, assets, Indebtedness, Guaranties or Liens
(other than holding FCC Licenses and owning the Ownership Interests of other
License Subs, and other than pursuant to a Subsidiary Guaranty and Subsidiary
Security Agreement issued in connection herewith or any agreement referred to
in the preceding sentence). Promptly after the transfer of the FCC Licenses to
the License Subs, the Borrower shall provide to the Administrative Agent copies
of any required consents to such transfer from the FCC and any other
governmental authority, together with a certificate of an Authorized Signatory
stating that all Necessary Authorizations relating to such transfer have been
obtained or made, are in full force and effect and are not subject to any
pending or threatened reversal or cancellation.
Section 5.17 Maintenance of Network Affiliations; Operating
Agreements. The Borrower will, and will cause each of its Subsidiaries to,
maintain a network affiliation with ABC, CBS, NBC, FOX, UPN, Warner Brothers,
PAX or other network reasonably satisfactory to the Required Lenders at all
times for each Station. The Borrower will, and will cause each of its
Subsidiaries to maintain, and not breach or violate, any and all Operating
Agreements and other material contracts and rights necessary to operate the
Stations, the Newspapers, the Porta-Phone Paging Business, the Satellite
Broadcasting Business and its other media-related businesses in all material
respects.
Section 5.18 Ownership Reports. The Borrower will file Ownership
Reports for any Station acquired after the Agreement Date (reflecting such
Acquisition by the Borrower) with the FCC within thirty (30) days after the
date of the consummation of such Acquisition.
Section 5.19 Environmental Compliance and Indemnity.
(a) The Borrower will, and will cause each of its
Subsidiaries to, comply in all material respects with all Environmental Laws,
including, without limitation, all Environmental Laws in jurisdictions in which
the Borrower or any of its Subsidiaries owns or operates a facility or site,
arranges for disposal or treatment of Hazardous Materials, solid waste or other
wastes, accepts for transport any Hazardous Materials, solid wastes or other
wastes or holds any interest
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in Real Property or otherwise. Neither the Borrower nor any of its Subsidiaries
shall cause or allow the release of Hazardous Materials, solid waste or other
wastes on, under or to any Real Property in which the Borrower or such
Subsidiary holds any interest or performs any of its operations, in material
violation of any Environmental Law. The Borrower shall notify the Lenders
promptly after its receipt of notice thereof, of any Environmental Claim which
the Borrower receives involving any potential or actual material liability of
the Borrower or any of its Subsidiaries arising in connection with any
noncompliance with or violation of the requirements of any Environmental Law or
a material Release or threatened Release of any Hazardous Materials, solid
waste or other waste into the environment. The Borrower shall promptly notify
the Lenders (i) of any material release of Hazardous Material on, under or from
the Real Property in which the Borrower or any of its Subsidiaries holds or has
held an interest, upon the Borrower's learning thereof by receipt of notice
that the Borrower or any of its Subsidiaries is or may be liable to any Person
as a result of such Release or that the Borrower or such Subsidiary has been
identified as potentially responsible for, or is subject to investigation by
any governmental authority relating to, such Release, and (ii) of the
commencement or threat or any judicial or administrative proceeding alleging a
violation of any Environmental Laws.
(b) If the Administrative Agent at any time has a
reasonable basis to believe that there may be a violation of any Environmental
Law by, or any liability arising thereunder of, the Borrower or any of its
Subsidiaries or related to any real property owned, leased or operated by the
Borrower or any of its Subsidiaries or real property adjacent to such Real
Property, which violation or liability could reasonably be expected to have a
Materially Adverse Effect, then the Borrower shall, upon request from the
Administrative Agent, provide the Administrative Agent with such reports,
certificates, engineering studies or other written material or data as the
Administrative Agent may require so as to satisfy the Administrative Agent that
the Borrower or such Subsidiary is in material compliance with all applicable
Environmental Laws.
(c) The Borrower shall defend, indemnify and hold the
Administrative Agent and the Lenders and their respective officers, directors,
shareholders, employees, agents, affiliates, successors and assigns harmless
from and against all costs, expenses, claims, demands, damages, penalties and
liabilities of every kind or nature whatsoever incurred by them (including,
without limitation, reasonable attorney fees and expenses) arising out of,
resulting from or relating to (i) the noncompliance of the Borrower, any of its
Subsidiaries or any property owned or leased by the Borrower or any of its
Subsidiaries with any Environmental Law, or (ii) any investigatory or remedial
action involving the Borrower, any of its Subsidiaries or any property owned or
leased by the Borrower or any of its Subsidiaries and required by Environmental
Laws or by order of any governmental authority having jurisdiction under any
Environmental Laws, or (iii) any injury to any Person whatsoever or damage to
any property arising out of, in connection with or in any way relating to the
breach of any of the environmental warranties or covenants in this Agreement or
any facts or circumstances that cause any of the environmental representations
or warranties contained in this Agreement to cease to be true, or (iv) the
existence, treatment, storage, Release, generation, transportation, removal,
manufacture or other handling of any Hazardous Material on or affecting any
property owned or leased by the Borrower or any of its Subsidiaries, or (v) the
presence of any asbestos-containing material or underground storage tanks,
whether in use or closed, under or on any property owned or leased by the
Borrower or any of its Subsidiaries; provided, however, that the
70
foregoing indemnity shall not apply to any such costs, expenses, claims,
demands, damages, penalties or liabilities that are determined in a final
non-appealable order of a court of competent jurisdiction to have arisen solely
out of the gross negligence or willful misconduct of the indemnified person.
Section 5.20 Existing Letters of Credit. Cause each Existing
Letter of Credit to be replaced (if required by the beneficiary thereof) on or
before the current expiration date of such Existing Letter of Credit.
ARTICLE 6
Information Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Required
Lenders shall otherwise consent in writing, the Borrower will furnish or cause
to be furnished to the Administrative Agent (with, for the reports required
under Sections 6.1, 6.2, 6.3 and 6.4 hereof, sufficient copies for each
Lender):
Section 6.1 Quarterly Financial Statements and Information.
Within forty-five (45) days (or such shorter period as required by Applicable
Law) after the last day of each of the first three (3) quarters of each fiscal
year of the Borrower, the balance sheets and the related statements of
operations of the Borrower on a consolidated and consolidating basis with its
Subsidiaries as at the end of such quarter and as of the end of the preceding
fiscal year and the related statements of cash flows of the Borrower on a
consolidated basis with its Subsidiaries for such quarter and for the elapsed
portion of the year ended with the last day of such quarter, each of which
shall set forth in comparative form such figures as at the end of and for such
quarter and appropriate prior period and shall be certified by the chief
financial officer, chief accounting officer or controller of the Borrower to
have been prepared in accordance with GAAP and to present fairly in all
material respects the financial position of the Borrower on a consolidated and
consolidating basis with its Subsidiaries as at the end of such period and the
results of operations for such period, and for the elapsed portion of the year
ended with the last day of such period, subject only to normal year-end and
audit adjustments.
Section 6.2 Annual Financial Statements and Information. Within
ninety (90) days (or such shorter period as required by Applicable Law) after
the end of each fiscal year of the Borrower, the audited consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such fiscal year
and the related audited consolidated statements of operations for such fiscal
year and for the previous fiscal year, the related audited consolidated
statements of cash flow and members' equity for such fiscal year and for the
previous fiscal year, each of which shall be accompanied by an opinion of
independent certified public accountants of recognized national standing
acceptable to the Administrative Agent (without a "going concern" or like
qualification or exception and without any qualification or exception as to the
scope of the audit), together with a statement of such accountants that in
connection with their audit, nothing came to their attention that caused them
to believe that the Borrower was not in compliance with or was
71
otherwise in Default under the terms, covenants, provisions or conditions of
Articles 7 and 8 hereof insofar as they relate to accounting or financial
matters.
Section 6.3 Monthly Financial Information. Within forty-five (45)
days after the end of each month for the first eleven (11) months of fiscal
year, and within ninety (90) days after the end of the last month of each
fiscal year, the Borrower shall furnish unaudited statements of income and
expense for each Station, each Newspaper, the Porta-Phone Paging Business and
the Satellite Broadcasting Business, which shall contain a comparison with
budget or projections for such period and a comparison to the comparable period
for the prior year, and which shall be certified by the chief financial
officer, chief accounting officer or controller of the Borrower.
Section 6.4 Performance Certificates. At the time the financial
statements are furnished pursuant to Sections 6.1 and 6.2, a certificate of the
president, chief financial officer, chief accounting officer or controller of
the Borrower as to its financial performance, in substantially the form
attached hereto as Exhibit M (each, a "Performance Certificate"):
(a) setting forth as and at the end of such quarterly
period or fiscal year, as the case may be, the arithmetical calculations
required to establish (i) any adjustment to the Applicable Margins, as provided
for in Section 2.3(f) and (ii) whether or not the Borrower was in compliance
with the requirements of Sections 7.8, 7.9, 7.10 and 7.11 hereof;
(b) stating that, to the best of his or her knowledge,
no Default has occurred as at the end of such quarterly period or year, as the
case may be, or, if a Default has occurred, disclosing each such Default and
its nature, when it occurred, whether it is continuing and the steps being
taken by the Borrower with respect to such Default; and
(c) containing a list of all Acquisitions, Investments
(other than Cash Equivalents), Restricted Payments, Restricted Purchases and
Asset Sales, in each case, which exceed $1,000,000.00 per transaction or series
of related transactions, for the four (4) quarter period then ended or most
recently ended, together with the total amount for each of the foregoing
categories.
Section 6.5 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all
reports, if any, submitted to the Borrower by the Borrower's independent public
accountants regarding the Borrower, including, without limitation, any
management report submitted to the board of directors of the Borrower prepared
in connection with the annual audit referred to in Section 6.2 hereof.
(b) From time to time and promptly upon each request,
such data, certificates, reports, statements, documents or further information
regarding the business, assets, liabilities, financial position, projections,
results of operations or business prospects of the Borrower or any of its
Subsidiaries, as the Administrative Agent or any Lender may reasonably request.
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(c) Annually, certificates of insurance indicating that
the requirements of Section 5.5 hereof remain satisfied for such fiscal year,
together with, upon request, copies of any new or replacement insurance
policies obtained during such year.
(d) Within sixty (60) days of the beginning of each
fiscal year, the annual budget for the Borrower and its Subsidiaries on a
quarter by quarter basis.
(e) Promptly upon their becoming available, copies of
(i) all financial statements, reports, notices and proxy statements sent or
made available generally by the Borrower to its security holders or by any
Subsidiary of the Borrower to its security holders other than the Borrower or
another Subsidiary of the Borrower, (ii) all regular and periodic reports and
all registration statements (other than on Form S-8 or a similar form) and
prospectuses, if any, filed by the Borrower or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority, (iii) all press releases and
other statements made available generally by the Borrower or any of its
Subsidiaries to the public concerning material developments in the business of
the Borrower or any of its Subsidiaries, (iv) any material non-routine
correspondence or official notices received by the Borrower, or any of its
Subsidiaries from the FCC or other communications regulatory authority, and (v)
all material information filed by the Borrower or any of its Subsidiaries with
the FCC (including all Ownership Reports and amendments or supplements to any
Ownership Report).
(f) Promptly upon (i) receipt of notice of (A) any
forfeiture, non-renewal, cancellation, termination, revocation, suspension,
impairment or material modification of any material License held by the
Borrower or any of its Subsidiaries, or any notice of default or forfeiture
with respect to any such License, or (B) any refusal by any governmental agency
or authority (including the FCC) to renew or extend any such License, a
certificate specifying the nature of such event, the period of existence
thereof, and what action the Borrower and its Subsidiaries are taking and
propose to take with respect thereto, and (ii) any Acquisition of any Station,
a written notice setting forth with respect to such Station all of the data
required to be set forth in Schedule 3 with respect to such Stations and the
Licenses required in connection with the ownership and operation of such
Station (it being understood that such written notice shall be deemed to
supplement Schedule 3 attached hereto for all purposes of this Agreement).
Section 6.6 Notice of Litigation and Other Matters. Notice
specifying the nature and status of any of the following events, promptly, but
in any event not later than fifteen (15) days after the occurrence of any of
the following events becomes known to the Borrower:
(a) the commencement of all proceedings and
investigations by or before any governmental body and all actions and
proceedings in any court or before any arbitrator against the Borrower or any
Subsidiary, or, to the extent known to the Borrower, which could reasonably be
expected to have a Materially Adverse Effect;
(b) any material adverse change with respect to the
business, assets, liabilities, financial position, annual budget, results of
operations, business prospects or projections of the Borrower and its
Subsidiaries, taken as a whole, other than changes in the ordinary course of
73
business which have not had and would not reasonably be expected to have a
Materially Adverse Effect and other than changes in the industry in which the
Borrower or any of its Subsidiaries operate which would not reasonably be
expected to have a Materially Adverse Effect;
(c) any Default or the occurrence or non-occurrence of
any event (i) which constitutes, or which with the passage of time or giving of
notice or both would constitute a default by the Borrower or any of its
Subsidiaries under any material agreement other than this Agreement and the
other Loan Documents to which the Borrower or any Subsidiary of the Borrower is
party or by which any of their respective properties may be bound, including,
without limitation, the Subordinated Note Indenture or any License, Operating
Agreement or other material contract, or (ii) which could have a Materially
Adverse Effect, giving in each case a description thereof and specifying the
action proposed to be taken with respect thereto;
(d) the occurrence of any Reportable Event or a
"prohibited transaction" (as such term is defined in Section 406 of ERISA or
Section 4975 of the Code) with respect to any Plan of the Borrower or any of
its Subsidiaries or the institution or threatened institution by PBGC of
proceedings under ERISA to terminate or to partially terminate any such Plan or
the commencement or threatened commencement of any litigation regarding any
such Plan or naming it or the trustee of any such Plan with respect to such
Plan or any action taken by the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate of the Borrower to withdraw or partially withdraw from any Plan
or to terminate any Plan; and
(e) the occurrence of any event subsequent to the
Agreement Date which, if such event had occurred prior to the Agreement Date,
would have constituted an exception to the representation and warranty in
Section 4.1(m) of this Agreement.
ARTICLE 7
Negative Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Required
Lenders, or such greater number of Lenders as may be expressly provided herein,
shall otherwise give their prior consent in writing:
Section 7.1 Indebtedness of the Borrower and its Subsidiaries.
The Borrower shall not, and shall not permit any of its Subsidiaries to,
create, assume, incur or otherwise become or remain obligated in respect of, or
permit to be outstanding, any Indebtedness except:
(a) the Obligations (excluding Interest Rate Hedge
Obligations permitted pursuant to Section 7.1(d));
(b) accounts payable, accrued expenses (including taxes)
and customer advance payments incurred in the ordinary course of business;
74
(c) Indebtedness secured by Permitted Liens which,
together with Indebtedness permitted under Sections 7.1(f), (g), (h) and (i)
(other than obligations incurred pursuant to an Acquisition as may be permitted
in such Sections), shall not exceed $30,000,000.00 in the aggregate at any time
outstanding;
(d) obligations under Interest Rate Hedge Agreements;
(e) unsecured Indebtedness of the Borrower or any of its
Subsidiaries to the Borrower or any other Subsidiary of the Borrower so long as
the corresponding debt instruments are pledged to the Administrative Agent as
security for the Obligations;
(f) Guaranties constituting Indebtedness permitted under
Section 7.5 hereof which, together with Indebtedness permitted under Sections
7.1(c), (g), (h) and (i), (other than obligations incurred pursuant to an
Acquisition as may be permitted in such Sections) shall not exceed
$30,000,000.00 in the aggregate at any time outstanding;
(g) with respect to any Indebtedness relating to
personal property, any conditional sale obligation, any purchase money
obligation, any rental obligation, any purchase money security interest or any
other arrangement for the use of personal property of any other Person, which
in any such case has an unexpired term of not less than one (1) year, other
than an arrangement constituting a Capitalized Lease Obligation, provided that
the aggregate amount payable by the Borrower and its Subsidiaries pursuant to
all such Indebtedness in any fiscal year, together with Indebtedness permitted
under Section 7.1(c), (f), (h) and (i), (other than obligations incurred
pursuant to an Acquisition as may be permitted in such Sections) shall not
exceed $30,000,000.00 in the aggregate at any time outstanding, plus the amount
of any such obligations incurred pursuant to an Acquisition permitted under
Section 7.6 hereof;
(h) any lease or rental obligation for real property
which has an unexpired term of not less than one (1) year, provided that the
aggregate amount payable in respect of all such arrangements by the Borrower
and its Subsidiaries in any fiscal year, together with Indebtedness permitted
under Sections 7.1(c), (f), (g) and (i) (other than obligations incurred
pursuant to an Acquisition as may be permitted in such Sections) shall not
exceed $30,000,000.00 in the aggregate at any time outstanding, plus the amount
of any such obligations incurred pursuant to an Acquisition permitted under
Section 7.6 hereof;
(i) Capitalized Lease Obligations, provided that the
aggregate amount payable by the Borrower and its Subsidiaries in respect of all
such Capitalized Lease Obligations in any fiscal year, together with
Indebtedness permitted under Sections 7.1(c), (f), (g) and (h), (other than
obligations incurred pursuant to an Acquisition as may be permitted in such
Sections) shall not exceed $30,000,000.00 in the aggregate at any time
outstanding, plus the amount of any such obligations incurred pursuant to an
Acquisition permitted under Section 7.6 hereof;
(j) (X) Subordinated Debt incurred pursuant to the terms
of the Subordinated Note Indenture as in effect on the Agreement Date; and (Y)
other Subordinated Debt incurred on terms and conditions satisfactory to the
Co-Lead Arrangers (provided that any Subordinated Debt incurred on terms and
conditions substantially similar to the Subordinated Note Indenture
75
shall be deemed satisfactory to the Co-Lead Arrangers); provided, in each case,
the Net Proceeds (Indebtedness) of such Subordinated Debt are applied pursuant
to Section 2.7(b)(v) hereof, other than the Net Proceeds (Indebtedness) of any
Subordinated Debt incurred to pay all or a portion of the purchase price in
connection with an Acquisition or to consummate an Investment, in each case as
permitted pursuant to Section 7.6; provided that (i) the Administrative Agent
has received prior written notice of the incurrence of such Subordinated Debt
at the time of any notice required pursuant to Section 7.6, (ii) such
Subordinated Debt is incurred not more than 30 days prior to the consummation
of such Acquisition or Investment and (iii) no Default or Event of Default has
occurred and is continuing at the time of such incurrence or would exist after
giving effect thereto;
(k) Indebtedness of the Borrower and its Subsidiaries
existing as of the Agreement Date as set forth on Schedule 7 attached hereto;
(l) the Incremental Facility; and
(m) Indebtedness incurred pursuant to the Xxxxxx
Agreement, in a principal amount not to exceed $20,000,000.00 in the aggregate
at any time outstanding; provided such Indebtedness is purchase money
Indebtedness of the Borrower or any of its Subsidiaries that within ninety (90)
days of such purchase is incurred to finance part or all of (but not more than)
the purchase price of Equipment (as defined in the Xxxxxx Agreement) in which
neither the Borrower nor such Subsidiary had at any time prior to such purchase
any interest other than a security interest or an interest as a lessee under an
operating lease on terms and conditions no more restrictive than those
contained hereunder.
Section 7.2 Limitation on Liens. The Borrower shall not, and
shall not permit any of its Subsidiaries to, create, assume, incur or permit to
exist or to be created, assumed, incurred or permitted to exist, directly or
indirectly, any Lien on any of its properties or assets, whether now owned or
hereafter acquired, except for Permitted Liens. The Borrower shall not, and
shall not permit any of its Subsidiaries to undertake, covenant or agree with
any third party that it will not create, assume, incur or permit to exist any
Lien in the favor the Administrative Agent or the Lenders securing the
Obligations on any of its assets or properties, whether now owned or hereafter
acquired, except for Permitted Liens.
Section 7.3 Amendment and Waiver. The Borrower shall not, and
shall not permit any of its Subsidiaries to, enter into any amendment of, or
agree to or accept or consent to any waiver of any of the provisions of its
articles or certificate of incorporation, or its partnership agreement or its
by-laws, as appropriate, any License or Operating Agreement or any of the
documents evidencing Subordinated Debt, in each case, in any respect materially
adverse to the Administrative Agent or any Lender or any of their rights or
claims under any of the Loan Documents.
Section 7.4 Liquidation, Merger or Disposition of Assets.
(a) Disposition of Assets. The Borrower shall not, and
shall not permit any of its Subsidiaries to, make any Asset Sale; provided,
however, that the Borrower and its
76
Subsidiaries, or any of them, may make Asset Sales if such Asset Sales (i) are
in the ordinary course of business of assets held for resale in the ordinary
course of business or the trade in or replacement of assets in the ordinary
course of business, (ii) (A) do not exceed, for any transaction or series of
related transactions, $6,000,000.00 per fiscal year and (B) the proceeds of
such Asset Sales are applied pursuant to Section 2.7(b)(iii) hereof, (iii) (A)
involve the disposition of substantially all of the assets of the Porta-Phone
Paging Business or the Satellite Broadcasting Business and (B) the proceeds of
such Asset Sales are applied pursuant to Section 2.7(b)(iii) hereof, or (iv)
arise on account of the disposition of any Interest Rate Hedge Agreement.
(b) Liquidation or Merger. The Borrower shall not, and
shall not permit any of its Subsidiaries to, at any time liquidate or dissolve
itself (or suffer any liquidation or dissolution) or otherwise wind up, or
enter into any merger, other than (so long as no Default exists or would be
caused thereby): (i) a merger or consolidation among the Borrower and one or
more of its Subsidiaries, provided the Borrower is the surviving corporation,
or (ii) a merger between or among two or more Subsidiaries of the Borrower, or
(iii) in connection with an Acquisition permitted hereunder effected by a
merger in which the Borrower or, in a merger in which the Borrower is not a
party, a Subsidiary of the Borrower is the surviving corporation or the
surviving corporation becomes a Subsidiary of the Borrower, or (iv) the Merger.
Section 7.5 Limitation on Guaranties. The Borrower shall not, and
shall not permit any of its Subsidiaries to, at any time Guaranty, assume, be
obligated with respect to, or permit to be outstanding any Guaranty of, any
obligation of any other Person other than: (a) a guaranty by endorsement of
negotiable instruments for collection in the ordinary course of business; (b)
as may be contained in any Loan Document; or (c) Guaranties of Indebtedness
incurred as permitted pursuant to Section 7.1(f) hereof and the Borrower
provides to the Administrative Agent and the Lenders calculations in form and
substance reasonably satisfactory to the Administrative Agent, specifically
demonstrating compliance with Sections 7.8, 7.9, 7.10 and 7.11 hereof after
giving effect to such Guaranty.
Section 7.6 Investments and Acquisitions. The Borrower shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly make
any Acquisition or Investment; provided, however, that so long as no Default or
Event of Default exists or would be caused thereby the Borrower and its
Subsidiaries may:
(a) make Investments in Cash Equivalents;
(b) make Investments in Subsidiaries;
(c) provided that the Borrower complies with Sections
5.13 and 5.16 hereof in connection therewith, and provides to the
Administrative Agent and the Lenders within ten (10) days prior to the
consummation of the proposed Acquisition an acquisition report signed by an
executive officer of the Borrower, in form and substance reasonably
satisfactory to the Administrative Agent, which shall include, without
limitation, (X) financial calculations specifically demonstrating the
Borrower's pro forma compliance with Sections 7.8, 7.9, 7.10, and 7.11 hereof
after giving effect to such Acquisition and (Y) financial projections for the
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Borrower for a five (5) year period after the closing of such Acquisition after
giving effect to such Acquisition, including, without limitation, a statement
of sources and uses of funds for such Acquisition showing, among other things,
the sources of financing for such Acquisition, and demonstrating Borrower's
ability to meet its repayment obligations hereunder through the Maturity Date,
the Borrower and its Subsidiaries may make Acquisitions of Stations or
Newspapers subject to satisfaction of the following conditions:
(i) the Borrower shall have given to the
Administrative Agent written notice of such Acquisition at least fifteen (15)
days prior to executing any binding commitment with respect thereto, which
notice shall state the additional amounts, if any, by which the Borrower
proposes to increase the dollar limitations set forth in Sections 7.1(g), (h)
and (i) hereof, and the structure of the transaction shall be in form and
substance acceptable to the Administrative Agent;
(ii) the agreement governing such Acquisition
and all related documents and instruments shall be in form and substance
satisfactory to the Administrative Agent;
(d) provided that the Borrower complies with Sections
5.13 and 5.16 hereof in connection therewith, and provides to the
Administrative Agent and the Lenders within ten (10) days prior to the
consummation of the proposed Acquisition an acquisition report signed by an
executive officer of the Borrower, in form and substance reasonably
satisfactory to the Administrative Agent, which shall include, without
limitation, (X) financial calculations specifically demonstrating the
Borrower's pro forma compliance with Sections 7.8, 7.9, 7.10 and 7.11 hereof
after giving effect to such Acquisition and (Y) financial projections for the
Borrower for a five (5) year period after the closing of such Acquisition after
giving effect to such Acquisition, including, without limitation, a statement
of sources and uses of funds for such Acquisition showing, among other things,
the sources of financing for such Acquisition, and demonstrating Borrower's
ability to meet its repayment obligations hereunder through the Maturity Date,
the Borrower and its Subsidiaries may make Acquisitions of or Investments in
Stations or Newspapers in an aggregate amount not to exceed $2,000,000.00 per
transaction or series of related transactions per fiscal year;
(e) the Borrower may make such other Acquisitions as may
be approved from time to time by the Required Lenders in their sole discretion;
(f) Investments in the form of Interest Rate Hedge
Agreements permitted pursuant to Section 7.1;
(g) the Borrower may consummate the Reno Acquisition;
provided that (i) the Borrower complies with Sections 5.13 and 5.16 hereof in
connection therewith, (ii) prior to the closing of the Reno Acquisition the
Borrower shall have received incremental gross cash proceeds, as necessary,
from the issuance of equity or similar securities in an amount that together
with the amount of the gross cash proceeds from the Planned Equity Offering
equals or exceeds the Target Equity Amount and (iii) such Acquisition is
consummated pursuant to the terms of the Reno Acquisition Agreement;
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(h) other Investments in joint ventures or similar
business arrangements, on terms and conditions satisfactory to the Co-Lead
Arrangers; provided, that on or prior to the consummation of such Investment,
the Borrower shall provide to the Administrative Agent, in form and substance
satisfactory to the Administrative Agent, (i) financial calculations
specifically demonstrating the Borrower's pro forma compliance with Sections
7.8, 7.9, 7.10, and 7.11 hereof after giving effect to such Investment, (ii)
financial projections for the Borrower for a five (5) year period after the
closing of such Investment after giving effect to such Investment, including,
without limitation, a statement of sources and uses of funds for such
Investment showing, among other things, the sources of financing for such
Investment, and demonstrating Borrower's ability to meet its repayment
obligations hereunder through the Maturity Date and (iii) certification that no
Default or Event of Default exists or will be caused by such Investment; and
(i) the Borrower may consummate the Merger.
Section 7.7 Restricted Payments; Restricted Purchases. The
Borrower shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly declare or make any Restricted Payment or Restricted Purchase;
provided, however, that:
(a) any Subsidiary of the Borrower may make Restricted
Payments to the Borrower or to a wholly-owned Subsidiary of the Borrower;
(b) the Borrower may purchase subordinated notes in the
open market issued under the Subordinated Note Indenture so long as no Default
or Event of Default exists at the time of making such purchase or would exist
after giving effect thereto;
(c) the Borrower may make payments of current interest
on the senior subordinated notes issued pursuant to and in accordance with the
Subordinated Note Indenture;
(d) the Borrower:
(i) may use Excess Offering Proceeds to redeem
its preferred stock and its common stock, so long as (A)
common stock is redeemed with (1) Excess Offering Proceeds
from the issuance of common stock or Qualified PIK Preferred
Stock or (2) up to $15,000,000.00 of Excess Offering Proceeds
from the issuance of other preferred stock or other junior
securities in the aggregate during the term of this
Agreement, (B) preferred stock is redeemed with Excess
Offering Proceeds from the issuance of preferred stock or
other junior securities, and (C) no Default or Event of
Default has occurred and is continuing at the time of such
redemption or would exist after giving effect thereto;
(ii) may redeem (other than as set forth above
in clause (d)(i) of this Section 7.7) up to $20,000,000.00 of
its preferred or common stock from the Agreement Date through
the Maturity Date so long as (A) no Default or Event of
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Default has occurred and is continuing at the time of any
such redemption or would exist after giving effect thereto
and (B) at any time prior to the date on which the Borrower
has delivered a Performance Certificate pursuant to Section
6.4 hereof demonstrating compliance with Section 7.11 hereof
with respect to the fiscal quarter end as of which the
Borrower is required to maintain a Leverage Ratio equal to or
less than 5.75 to 1.00 pursuant to Section 7.11 hereof, the
Borrower shall demonstrate a pro forma Leverage Ratio (both
before and after giving effect to any proposed redemption
pursuant to this Section 7.7(d)(ii)) of at least 0.25 below
the applicable ratio set forth in Section 7.11 hereof; and
(iii) may (notwithstanding 7.7(d)(ii) above)
redeem its preferred or common stock so long as the Leverage
Ratio is less than 5.50 to 1.00 both before and after giving
effect to such redemption and no Default or Event of Default
has occurred and is continuing at the time of such redemption
or would exist after giving effect thereto; and
(e) the Borrower may make Restricted Payments and
Restricted Purchases (other than as set forth above in clause (a), (b), (c) or
(d) of this Section 7.7), provided that: (i) prior to making any such payment
or purchase, the Borrower shall have demonstrated to the satisfaction of the
Administrative Agent that the Borrower will be in compliance with all of the
covenants contained herein after giving effect to such payment or purchase;
(ii) no Default or Event of Default exists at the time of making such payment
or purchase or would exist after giving effect thereto; (iii) prior to making
any such payment or purchase, the Borrower shall have delivered to the
Administrative Agent a certificate of its chief financial officer, chief
accounting officer or controller in form and substance satisfactory to the
Administrative Agent which shall contain calculations demonstrating on a pro
forma basis the Borrower's compliance with Sections 7.8, 7.9, 7.10 and 7.11
hereof after giving effect to such payment or purchase and (iv) all such
Restricted Payments and Restricted Purchases made pursuant to this Section
7.7(e) shall not exceed in the aggregate in any fiscal year (A) $10,000,000.00
during the period up to the date set forth in the following subclause (B), and
(B) $15,000,000.00 at any time after the fiscal quarter end as of which the
Borrower is required to maintain a Leverage Ratio equal to or less than 5.75 to
1.00 pursuant to Section 7.11 hereof; provided that the Borrower has delivered
a Performance Certificate pursuant to Section 6.4 hereof demonstrating
compliance with Section 7.11 hereof as of such fiscal quarter end.
Section 7.8 Senior Leverage Ratio. At all times, the Borrower
shall not permit its Senior Leverage Ratio to exceed the ratios set forth below
during the periods indicated:
Period Senior Leverage Ratio
------ ---------------------
Agreement Date through December 30, 2002 4.50:1.00
December 31, 2002 through September 29, 2004 4.25:1.00
September 30, 2004 through December 30, 2004 3.75:1.00
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December 31, 2004 through June 29, 2006 3.25:1.00
June 30, 2006 and thereafter 3.00:1.00
Section 7.9 Interest Coverage Ratio. At all times, the Borrower
shall not permit its Interest Coverage Ratio to be less than the ratio set
forth below for the periods indicated:
Period Interest Coverage Ratio
------ -----------------------
Agreement Date through December 30, 2004 1.75:1.00
December 31, 2004 through June 29, 2006 2.00:1.00
June 30, 2006 and thereafter 2.25:1.00
Section 7.10 Fixed Charge Coverage Ratio. At all times, the
Borrower shall not permit its Fixed Charge Coverage Ratio to be less than
1.10:1.00.
Section 7.11 Leverage Ratio. At all times, the Borrower shall not
permit its Leverage Ratio to exceed the ratios set forth below during the
periods indicated:
Period Leverage Ratio
------ --------------
Agreement Date through March 30, 2004 6.90:1.00
March 31, 2004 through September 29, 2004 6.75:1.00
September 30, 2004 through December 30, 2004 6.25:1.00
December 31, 2004 through June 29, 2006 5.75:1.00
June 30, 2006 and thereafter 5.50:1.00
Section 7.12 Affiliate Transactions. Except as specifically
provided herein and as may be described on Schedule 6 attached hereto, the
Borrower shall not, and shall not permit any of its Subsidiaries to, at any
time engage in any transaction with an Affiliate, or make an assignment or
other transfer of any of its properties or assets to any Affiliate on terms no
less advantageous to the Borrower or such Subsidiary than would be the case if
such transaction had been effected with a non-Affiliate.
Section 7.13 Real Estate. Neither the Borrower nor any of its
Subsidiaries shall purchase any real estate or enter into any sale-leaseback
transaction except (a) as contemplated in
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an Acquisition permitted under Section 7.6 hereof and (b) real estate purchases
useful in connection with the Borrower's business made in the ordinary course
of business.
Section 7.14 ERISA Liabilities. The Borrower shall not, and shall
cause each of its ERISA Affiliates not to, (i) permit the assets of any of
their respective Plans to be materially less than the amount necessary to
provide all accrued benefits under such Plans, or (ii) enter into any
Multiemployer Plan.
Section 7.15 No Limitation on Upstream Dividends by Subsidiaries.
The Borrower shall not permit any Subsidiary to enter into or agree, or
otherwise become subject (other than pursuant to Applicable Law), to any
agreement, contract or other arrangement with any Person pursuant to the terms
of which (a) such Subsidiary is or would be prohibited from or limited in
declaring or paying any cash dividends or distributions on any class of its
Ownership Interests owned directly or indirectly by the Borrower or from making
any other distribution on account of any class of any such Ownership Interests
(herein referred to as "Upstream Dividends") or (b) the declaration or payment
of Upstream Dividends by a Subsidiary to the Borrower or to another Subsidiary,
on an annual or cumulative or other basis, is or would be otherwise limited or
restricted.
Section 7.16 Nature of Business. The Borrower shall not, and shall
cause each of its Subsidiaries not to alter in any material respect the
character or conduct of the business conducted by the Borrower and its
Subsidiaries as of the Agreement Date.
ARTICLE 8
Default
Section 8.1 Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule or regulation
of any governmental or non-governmental body:
(a) Any representation or warranty made under this
Agreement shall prove incorrect or misleading in any material respect when made
or deemed to be made pursuant to Section 4.2 hereof;
(b) The Borrower shall default in the payment of: (i)
any interest under any of the Notes or fees or other amounts payable to the
Lenders and the Administrative Agent under any of the Loan Documents, or any of
them, when due, and such Default shall not be cured by payment in full within
three (3) Business Days from the due date; or (ii) any principal under any of
the Notes when due;
(c) The Borrower shall default in the performance or
observance of any agreement or covenant contained in Sections 5.2(a), 5.10,
5.13, 5.16 or 5.20 hereof or in Articles 6 or 7 hereof;
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(d) The Borrower shall default in the performance or
observance of any other agreement or covenant contained in this Agreement not
specifically referred to elsewhere in this Section 8.1, and such default shall
not be cured within a period of thirty (30) days from the occurrence of such
Default;
(e) There shall occur any default in the performance or
observance of any agreement or covenant or breach of any representation or
warranty contained in any of the Loan Documents (other than this Agreement or
as otherwise provided in Section 8.1 hereof) by the Borrower, any of its
Subsidiaries, or any other obligor thereunder, which shall not be cured within
a period of thirty (30) days from the occurrence of such Default;
(f) There shall be entered and remain unstayed a decree
or order for relief in respect of the Borrower or any of its Subsidiaries under
Title 11 of the United States Code, as now constituted or hereafter amended, or
any other applicable federal or state bankruptcy law or other similar law, or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or similar official of the Borrower or any of its Subsidiaries, or of any
substantial part of their respective properties, or ordering the winding-up or
liquidation of the affairs of the Borrower, or any of its Subsidiaries; or an
involuntary petition shall be filed against the Borrower or any of its
Subsidiaries and a temporary stay entered, and (i) such petition and stay shall
not be diligently contested, or (ii) any such petition and stay shall continue
undismissed for a period of sixty (60) consecutive days;
(g) The Borrower or any of its Subsidiaries shall file a
petition, answer or consent seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other applicable federal
or state bankruptcy law or other similar law, or the Borrower or any of its
Subsidiaries shall consent to the institution of proceedings thereunder or to
the filing of any such petition or to the appointment or taking of possession
of a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Borrower or any of its Subsidiaries or of any
substantial part of their respective properties, or the Borrower or any of its
Subsidiaries shall fail generally to pay their respective debts as they become
due or shall be adjudicated insolvent; the Borrower shall suspend or
discontinue its business; the Borrower or any of its Subsidiaries shall have
concealed, removed any of its property with the intent to hinder or defraud its
creditors or shall have made a fraudulent or preferential transfer under any
applicable fraudulent conveyance or bankruptcy law, or the Borrower or any of
its Subsidiaries shall take any action in furtherance of any such action;
(h) A judgment not covered by insurance or
indemnification, where the indemnifying party has agreed to indemnify and is
financially able to do so, shall be entered by any court against the Borrower
or any of its Subsidiaries for the payment of money which exceeds singly or in
the aggregate with other such judgments, $5,000,000.00, or a warrant of
attachment or execution or similar process shall be issued or levied against
property of the Borrower or any of its Subsidiaries which, together with all
other such property of the Borrower or any of its Subsidiaries subject to other
such process, exceeds in value $5,000,000.00 in the aggregate, and if, within
thirty (30) days after the entry, issue or levy thereof, such judgment, warrant
or process shall not have been paid or discharged or stayed pending appeal or
removed
83
to bond, or if, after the expiration of any such stay, such judgment, warrant
or process shall not have been paid or discharged or removed to bond;
(i) There shall be at any time any material "accumulated
funding deficiency," as defined in ERISA or in Section 412 of the Code, with
respect to any Plan maintained by the Borrower or any of its Subsidiaries or
any ERISA Affiliate, or to which the Borrower or any of its Subsidiaries or any
ERISA Affiliate has any liabilities, or any trust created thereunder; or a
trustee shall be appointed by a United States District Court to administer any
such Plan; or PBGC shall institute proceedings to terminate any such Plan; or
the Borrower or any of its Subsidiaries or any ERISA Affiliate shall incur any
liability to PBGC in connection with the termination of any such Plan; or any
Plan or trust created under any Plan of the Borrower or any of its Subsidiaries
or any ERISA Affiliate shall engage in a "prohibited transaction" (as such term
is defined in Section 406 of ERISA or Section 4975 of the Code) which would
subject any such Plan, any trust created thereunder, any trustee or
administrator thereof, or any party dealing with any such Plan or trust to the
tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code;
(j) There shall occur (i) any default under any
instrument, document or agreement relating to any Indebtedness of the Borrower
or any of its Subsidiaries in an aggregate principal amount exceeding
$5,000,000.00; (ii) any event or condition the occurrence of which would permit
such acceleration of such Indebtedness, or which, as a result of a failure to
comply with the terms thereof, would make such Indebtedness otherwise due and
payable, and which event or condition has not been cured within any applicable
cure period or waived in writing prior to any declaration of an Event of
Default or acceleration of the Loans hereunder; or (iii) any material default
under any Interest Rate Hedge Agreement which would permit the obligation of
the Borrower to make payments to the counterparty thereunder to be then due and
payable;
(k) Any Loan Document or any material provision thereof,
shall at any time and for any reason be declared by a court of competent
jurisdiction to be null and void, or a proceeding shall be commenced by the
Borrower or any of its Subsidiaries or by any governmental authority having
jurisdiction over the Borrower or any of its Subsidiaries seeking to establish
the invalidity or unenforceability thereof (exclusive of questions of
interpretation of any provision thereof), or the Borrower or any of its
Subsidiaries shall deny that it has any liability or obligation for the payment
of principal or interest purported to be created under any Loan Document;
(l) Any Security Document shall for any reason, fail or
cease (except by reason of lapse of time) to create a valid and perfected and
first-priority Lien on or Security Interest in any portion of the Collateral
purported to be covered thereby, subject only to Permitted Liens;
(m) (i) Any Person (or group of Persons) is or becomes
the "beneficial owner" (within the meaning of Rules 13d-3 and 13d-5 under the
federal Securities Exchange Act of 1934, as amended), directly or indirectly,
of a percentage of the voting Ownership Interests of the Borrower greater than
thirty-five percent (35%), other than J. Xxxx Xxxxxxxx or Xxxxxx X.
84
Xxxxxxx, Jr., the spouse and lineal descendants or either such individual, the
estate, executor, administrator, or other personal representative of either
such individual, or any trust created for either such individual or for the
spouse or lineal descendants of either such individual; or (ii) during any
period of twenty-four (24) consecutive months, individuals who at the beginning
of such period constituted the Board of Directors of the Borrower (together
with any new directors whose election by such Board or whose nomination for
election by the stockholders of the Borrower was approved by a majority of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors then in office; or (iii) except as permitted pursuant to this
Agreement, the Borrower shall cease or fail to own, directly or indirectly,
beneficial and legal title to all of the issued and outstanding Ownership
Interests of each of its Subsidiaries or any Subsidiary of the Borrower shall
cease to be a wholly-owned Subsidiary of the Borrower;
(n) Any material License shall be cancelled, terminated,
rescinded, revoked, suspended, impaired, otherwise finally denied renewal, or
otherwise modified in any material adverse respect, or shall be renewed on
terms that materially and adversely affect the economic or commercial value or
usefulness thereof; or any material License shall cease to be in full force and
effect; or the grant of any material License shall have been stayed, vacated or
reversed, or modified in any material adverse respect by judicial or
administrative proceedings; or any administrative law judge or other
representative of the FCC shall have issued an initial decision in any
non-comparative material License renewal, material License revocation or any
comparative (multiple applicant) proceeding to the effect that any material
License should be revoked or not be renewed; or any other proceeding shall have
been instituted by the FCC or shall have been commenced before any court, the
FCC or any other regulatory body that could reasonably be expected to result in
(i) cancellation, termination, rescission, revocation, material impairment,
suspension or denial of renewal of a material License, (ii) a modification of a
material License in a material adverse respect or a renewal thereof on terms
that materially and adversely affect the economic or commercial value or
usefulness thereof or (iii) the forfeiture (within the meaning of 47 C.F.R.
Setion 1.80 of the FCC Regulations) or other materially adverse effect on or
with respect to any material License that would result in a Material Adverse
Effect on the Borrower as a result of the failure by the Borrower or any
Subsidiary thereof to comply with any FCC Regulation regarding digital
television broadcasting;
(o) Any Operating Agreement or any other agreement which
is necessary to the operation of a Station, a Newspaper, the Porta-Phone Paging
Business or the Satellite Broadcasting Business shall be revoked or terminated
or materially, adversely modified and not replaced by a substitute acceptable
to the Required Lenders within thirty (30) days of such revocation, termination
or modification;
(p) The Borrower's on-the-air broadcast operations at
any Station shall be interrupted at any time for more than forty-eight (48)
hours, whether or not consecutive, during any period of five (5) consecutive
days, and such interruption could reasonably be expected to have a Materially
Adverse Effect; or
85
(q) The Borrower or any holder of Subordinated Debt
shall fail to comply with the agreement or instrument governing or evidencing
such Subordinated Debt or any separate subordination agreement, and the
Administrative Agent shall have determined that such failure to comply could
reasonably be expected to have a material adverse effect on the Borrower or any
of its Subsidiaries or on its ability to perform its obligations hereunder or
under any of the Loan Documents or on the rights and remedies of the
Administrative Agent and the Lenders hereunder or under the Loan Documents.
Section 8.2 Remedies.
(a) If an Event of Default specified in Section 8.1
hereof (other than an Event of Default under Section 8.1(f) or (g) hereof)
shall have occurred and shall be continuing, the Administrative Agent, at the
request of the Required Lenders subject to Section 9.8 hereof, shall (i) (A)
terminate the Commitments, and/or (B) declare the principal of and interest on
the Loans and the Notes and all other amounts owed to the Lenders and the
Administrative Agent under this Agreement, the Notes and any other Loan
Documents to be forthwith due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby expressly waived, anything
in this Agreement, the Notes or any other Loan Document to the contrary
notwithstanding, and the Commitments shall thereupon forthwith terminate and
(ii) require the Borrower to, and the Borrower shall thereupon, deposit in an
interest bearing account with the Administrative Agent, as cash collateral for
the Obligations, an amount equal to the maximum amount currently or at any time
thereafter to be drawn on all outstanding Letters of Credit, and the Borrower
hereby pledges to the Administrative Agent, the Lenders and the Issuing Bank
and grants to them a security interest in, all such cash as security for the
Obligations.
(b) Upon the occurrence and continuance of an Event of
Default specified in Section 8.1(f) or (g) hereof, all principal, interest and
other amounts due hereunder and under the Notes, and all other Obligations
(other than Interest Rate Hedge Obligations), shall thereupon and concurrently
therewith become due and payable and the Commitments shall forthwith terminate
and the principal amount of the Loans outstanding hereunder shall bear interest
at the Default Rate, and the Borrower shall thereupon, deposit in an interest
bearing account with the Administrative Agent, as cash collateral for the
Obligations, an amount equal to the maximum amount currently or at any time
thereafter to be drawn on all outstanding Letters of Credit, all without any
action by the Administrative Agent, the Lenders, the Required Lenders and the
Issuing Bank, or any of them, and without presentment, demand, protest or other
notice of any kind, all of which are expressly waived, anything in this
Agreement or in the other Loan Documents to the contrary notwithstanding, and
the Borrower hereby pledges to the Administrative Agent, the Lenders and the
Issuing Bank and grants to them a security interest in, all such cash as
security for the Obligations.
(c) Upon acceleration of the Notes, as provided in
subsection (a) or (b) of this Section 8.2, the Administrative Agent and the
Lenders shall have all of the post-default rights granted to them, or any of
them, as applicable under the Loan Documents and under Applicable Law.
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(d) Upon acceleration of the Notes, as provided in
subsection (a) or (b) of this Section 8.2, the Administrative Agent shall have
the right (but not the obligation) upon the request of the Lenders to operate
the business of the Borrower and its Subsidiaries in accordance with the terms
of the Licenses and pursuant to the terms and subject to any limitations
contained in the Security Documents and, within guidelines established by the
Required Lenders, to make any and all payments and expenditures necessary or
desirable in connection therewith, including, without limitation, payment of
wages as required under the Fair Labor Standards Act, as amended, and of any
necessary withholding taxes to state or federal authorities. In the event the
Required Lenders fail to agree upon the guidelines referred to in the preceding
sentence within six (6) Business Days after the Administrative Agent has begun
to operate the business of the Borrower, the Administrative Agent may, after
giving three (3) days' prior written notice to the Lenders of its intention to
do so, make such payments and expenditures as it deems reasonable and advisable
in its sole discretion to maintain the normal day-to-day operation of such
business. Such payments and expenditures in excess of receipts shall constitute
Advances under this Agreement, not in excess of the amount of the Commitments.
Advances made pursuant to this Section 8.2(d) shall bear interest as provided
in Section 2.3(d) hereof and shall be payable on demand. The making of one or
more Advances under this Section 8.2(d) shall not create any obligation on the
part of the Lenders to make any additional Advances hereunder. No exercise by
the Administrative Agent of the rights granted to it under this Section 8.2(d)
shall constitute a waiver of any other rights and remedies granted to the
Administrative Agent and the Lenders, or any of them, under this Agreement or
at law. The Borrower hereby irrevocably appoints the Administrative Agent as
agent for the Lenders, the true and lawful attorney of the Borrower, in its
name and stead and on its behalf, to execute, receipt for or otherwise act in
connection with any and all contracts, instruments or other documents in
connection with the operation of the Borrower's business in the exercise of the
Administrative Agent's and the Lenders' rights under this Section 8.2(d). Such
power of attorney is coupled with an interest and is irrevocable. The rights of
the Administrative Agent under this Section 8.2(d) shall be subject to its
prior compliance with Applicable Law to the extent applicable to the exercise
of such rights.
(e) Upon acceleration of the Notes, as provided in
subsection (a) or (b) of this Section 8.2, the Administrative Agent, upon
request of the Required Lenders, shall have the right to the appointment of a
receiver for the properties and assets of the Borrower and its Subsidiaries,
and the Borrower, for itself and on behalf of its Subsidiaries, hereby consents
to such rights and such appointment and hereby waives any objection the
Borrower or any Subsidiary may have thereto or the right to have a bond or
other security posted by the Administrative Agent on behalf of the Lenders, in
connection therewith. The rights of the Administrative Agent under this Section
8.2(e) shall be subject to its prior compliance with Applicable Law to the
extent applicable to the exercise of such rights.
(f) The rights and remedies of the Administrative Agent
and the Lenders hereunder shall be cumulative, and not exclusive.
Section 8.3 Payments Subsequent to Declaration of Event of
Default. Subsequent to the acceleration of the Loans under Section 8.2 hereof,
payments and prepayments under this Agreement made to the Administrative Agent
and the Lenders or otherwise received by any of such Persons (from realization
on Collateral for the Obligations or otherwise) shall be paid over
87
to the Administrative Agent (if necessary) and distributed by the
Administrative Agent as follows: first, to the Administrative Agent's
reasonable costs and expenses, if any, incurred in connection with the
collection of such payment or prepayment, including, without limitation, any
reasonable costs incurred by it in connection with the sale or disposition of
any Collateral for the Obligations and all amounts under Section 11.2(b) and
(c) hereof; second, to the Lenders, the Issuing Bank or the Administrative
Agent on a pro rata basis, based on all such amounts then due and payable for
any fees and expenses hereunder or under any of the other Loan Documents then
due and payable; third, to the Lenders pro rata, to the payment of any unpaid
interest which may have accrued on the Obligations; fourth, to the Lenders on a
pro rata basis, based on the Loans and Letter of Credit Obligations then
outstanding until all Loans and Letter of Credit Obligations have been paid in
full (and, for purposes of this clause, Interest Rate Hedge Obligations shall
be paid to the counterparty thereof on a pro rata basis with the Loans);
provided that the portion of such payment allocated to any outstanding undrawn
Letters of Credit shall be deposited as set forth in Section 8.2(a) or (b)
hereof; fifth, to the Lenders on a pro rata basis, based on the Loans
outstanding to the payment of any other unpaid Obligations; sixth, to damages
incurred by the Administrative Agent, the Issuing Bank and the Lenders, or any
of them, by reason of any breach hereof or of any other Loan Document (on a pro
rata basis, based on all such amounts then due and payable); and seventh, to
the Borrower or as otherwise required by law.
ARTICLE 9
The Administrative Agent
Section 9.1 Appointment and Authorization. Each Lender hereby
irrevocably appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its portion of the Loans and in its Note
irrevocably to appoint and authorize, the Administrative Agent to take such
actions as its agent on its behalf and to exercise such powers hereunder and
under the other Loan Documents as are delegated by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto.
Neither the Administrative Agent, nor any of its respective directors,
officers, employees or agents, shall be liable for any action taken or omitted
to be taken by it or them hereunder or in connection herewith, except for its
or their own gross negligence or willful misconduct as determined by a final,
non-appealable judicial order of a court of competent jurisdiction.
Section 9.2 Interest Holders. The Administrative Agent may treat
each Lender, or the Person designated in the last notice filed with the
Administrative Agent, as the holder of all of the interests of such Lender in
its portion of the Loans and in its Note until written notice of transfer,
signed by such Lender (or the Person designated in the last notice filed with
the Administrative Agent) and by the Person designated in such written notice
of transfer, in form and substance reasonably satisfactory to the
Administrative Agent, shall have been filed with the Administrative Agent.
Section 9.3 Consultation with Counsel. The Administrative Agent
may consult with Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P., Charlotte, North
Carolina, special counsel to the Administrative Agent, or with other legal
counsel selected by it and shall not be liable for any
88
action taken or suffered by it in good faith in consultation with the Required
Lenders and in reasonable reliance on such consultations.
Section 9.4 Documents. The Administrative Agent shall be under no
duty to examine, inquire into, or pass upon the validity, effectiveness or
genuineness of this Agreement, any Note, any other Loan Document, or any
instrument, document or communication furnished pursuant hereto or in
connection herewith, and the Administrative Agent shall be entitled to assume
that they are valid, effective and genuine, have been signed or sent by the
proper parties and are what they purport to be.
Section 9.5 Administrative Agent and Affiliates. With respect to
the Commitments and the Loans, the Administrative Agent shall have the same
rights and powers hereunder as any other Lender and the Administrative Agent
and Affiliates of the Administrative Agent may accept deposits from, lend money
to and generally engage in any kind of business with the Borrower, any of its
Subsidiaries or any Affiliates of, or Persons doing business with the Borrower,
as if they were not affiliated with the Administrative Agent and without any
obligation to account therefor.
Section 9.6 Responsibility of the Administrative Agent and the
Issuing Bank. The duties and obligations of the Administrative Agent and the
Issuing Bank under this Agreement are only those expressly set forth in this
Agreement. Each of the Administrative Agent and the Issuing Bank shall be
entitled to assume that no Default or Event of Default has occurred and is
continuing unless it has actual knowledge, or has been notified in writing by
the Borrower, of such fact, or has been notified by a Lender in writing that
such Lender considers that a Default or an Event of Default has occurred and is
continuing, and such Lender shall specify in detail the nature thereof in
writing. Each of the Administrative Agent and the Issuing Bank shall not be
liable hereunder for any action taken or omitted to be taken except for its own
respective gross negligence or willful misconduct as determined by a final,
non-appealable judicial order of a court of competent jurisdiction. The
Administrative Agent and the Issuing Bank shall provide each Lender with copies
of such documents received from the Borrower as such Lender may reasonably
request.
Section 9.7 Action by the Administrative Agent and the Issuing
Bank.
(a) Each of the Administrative Agent and the Issuing
Bank shall be entitled to use its discretion with respect to exercising or
refraining from exercising any rights which may be vested in it by, and with
respect to taking or refraining from taking any action or actions which it may
be able to take under or in respect of, this Agreement, unless the
Administrative Agent or the Issuing Bank shall have been instructed by the
Required Lenders to exercise or refrain from exercising such rights or to take
or refrain from taking such action; provided that neither the Administrative
Agent nor the Issuing Bank shall exercise any rights under Section 8.2(a)
hereof without the request of the Required Lenders (or, where expressly
required, all of the Lenders) unless time is of the essence. Each of the
Administrative Agent and the Issuing Bank shall incur no liability under or in
respect of this Agreement with respect to anything which it may do or refrain
from doing in the reasonable exercise of its judgment or which may seem to it
to be necessary or desirable in the circumstances, except for its own
respective gross
89
negligence or willful misconduct as determined by a final, non-appealable
judicial order of a court having jurisdiction over the subject matter.
(b) Neither the Administrative Agent nor the Issuing
Bank shall be liable to the Lenders, or to any Lender, or the Borrower or any
its Subsidiaries in acting or refraining from acting under this Agreement or
any other Loan Document in accordance with the instructions of the Required
Lenders (or, where expressly required, all of the Lenders), and any action
taken or failure to act pursuant to such instructions shall be binding on all
Lenders, except for its own respective gross negligence or willful misconduct
as determined by a final, non-appealable judicial order of a court having
jurisdiction over the subject matter. Neither the Administrative Agent nor the
Issuing Bank shall be obligated to take any action which is contrary to law or
which would in such Person's reasonable opinion subject such Person to
liability.
Section 9.8 Notice of Default or Event of Default. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to defaults
in the payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless it has received
notice from a Lender or the Borrower referring to this Agreement, describing
such Default or Event of Default and stating that such notice a "notice of
default". In the event that the Administrative Agent, the Issuing Bank or any
Lender shall acquire actual knowledge, or shall have been notified, of any
Default or Event of Default, the Administrative Agent, the Issuing Bank or such
Lender shall promptly notify the Lenders (provided failure to give such notice
shall not result in any liability on the part of such Lender, the Issuing Bank
or Administrative Agent), and the Administrative Agent and the Issuing Bank
shall take such action and assert such rights under this Agreement and the
other Loan Documents as the Required Lenders shall request in writing, and
neither the Administrative Agent nor the Issuing Bank shall be subject to any
liability by reason of its acting pursuant to any such request. If the Required
Lenders shall fail to request the Administrative Agent and the Issuing Bank to
take action or to assert rights under this Agreement or any other Loan
Documents in respect of any Default or Event of Default within ten (10) days
after their receipt of the notice of any Default or Event of Default from the
Administrative Agent, the Issuing Bank or any Lender, or shall request
inconsistent action with respect to such Default or Event of Default, the
Administrative Agent and the Issuing Bank, or either of them, may, but shall
not be required to, take such action and assert such rights (other than rights
under Article 8 hereof) as it deems in their or its respective discretion to be
advisable for the protection of the Lenders, except that, if the Required
Lenders have instructed the Administrative Agent and the Issuing Bank not to
take such action or assert such right, in no event shall the Administrative
Agent and the Issuing Bank act contrary to such instructions unless time is of
the essence.
Section 9.9 Responsibility Disclaimed. The Administrative Agent
shall not be under any liability or responsibility whatsoever as Administrative
Agent:
(a) To the Borrower or any other Person as a consequence
of any failure or delay in performance by or any breach by, any Lender or
Lenders of any of its or their obligations under this Agreement;
90
(b) To any Lender or Lenders, as a consequence of any
failure or delay in performance by, or any breach by, (i) the Borrower of any
of its obligations under this Agreement or the Notes or any other Loan
Document, or (ii) any Subsidiary of the Borrower or any other obligor under any
other Loan Document;
(c) To any Lender or Lenders, for any statements,
representations or warranties in this Agreement, or any other document
contemplated by this Agreement or any information provided pursuant to this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement, or for the validity, effectiveness, enforceability or sufficiency of
this Agreement, the Notes, any other Loan Document, or any other document
contemplated by this Agreement; or
(d) To any Person for any act or omission other than
that arising from gross negligence or willful misconduct of the Administrative
Agent as determined by a final, non-appealable judicial order of a court of
competent jurisdiction.
Section 9.10 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower) pro rata
according to their respective Commitment Ratios and Incremental Facility
Commitment Ratios, from and against any and all liabilities, obligations,
losses (other than the loss of principal and interest hereunder in the event of
a bankruptcy or out-of-court "work-out" of the Loans), damages, penalties,
actions, judgments, suits, costs, expenses (including reasonable fees and
expenses of experts, agents, consultants and counsel), or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement or any other Loan Document or any action taken or omitted by the
Administrative Agent under this Agreement, any other Loan Document, or any
other document contemplated by this Agreement, except that no Lender shall be
liable to the Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent as determined by a final, non-appealable
judicial order of a court having jurisdiction over the subject matter.
Section 9.11 Credit Decision. Each Lender represents and warrants
to each other and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement
and to make its portion of the Loans, it has independently taken whatever steps
it considers necessary to evaluate the financial condition and affairs of the
Borrower, that it has made an independent credit judgment, and that it has not
relied upon the Administrative Agent or information provided by the
Administrative Agent (other than information provided to the Administrative
Agent by the Borrower and forwarded by the Administrative Agent to the
Lenders); and
(b) So long as any portion of the Loans remains
outstanding or such Lender has an obligation to make its portion of Advances
hereunder, it will continue to make its own independent evaluation of the
financial condition and affairs of the Borrower.
Section 9.12 Successor Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving written notice
thereof to the Lenders and the Borrower and may be removed at any time for
cause by the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Administrative
Agent which appointment shall, prior to a Default, be subject to the consent of
the Borrower, acting reasonably. If (a) no successor Administrative Agent shall
have been so appointed by the Required Lenders or (b) if appointed, no
successor Administrative Agent shall have accepted such appointment within
thirty (30) days after the retiring Administrative Agent gave notice of
resignation or the Required Lenders removed the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be any Lender or a commercial bank
organized under the laws of the United States or any political subdivision
thereof which has combined capital and reserves in excess of $250,000,000.00
and which shall be reasonably acceptable to the Borrower. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges, duties
and obligations of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. After any retiring Administrative
Agent's resignation or removal hereunder as Administrative Agent the provisions
of this Article 9 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Administrative Agent. In the event that the Administrative Agent or any of its
respective affiliates ceases to be a Lender hereunder, such Person shall resign
its agency hereunder.
Section 9.13 Delegation of Duties. The Administrative Agent may
execute any of its duties under the Loan Documents by or through agents or
attorneys selected by it using reasonable care, and shall be entitled to advice
of counsel concerning all matters pertaining to such duties.
Section 9.14 Co-Lead Arrangers; Syndication Agent; Documentation
Agent. Each of the Co-Lead Arrangers, the Syndication Agent and the
Documentation Agent in its capacity as Co-Lead Arrangers, Syndication Agent and
Documentation Agent, respectively, shall have no duties or responsibilities
under this Agreement or any other Loan Document.
ARTICLE 10
Change in Circumstances Affecting LIBOR Advances
Section 10.1 LIBOR Basis Determination Inadequate or Unfair. If
with respect to any proposed LIBOR Advance for any Interest Period, the
Administrative Agent determines after consultation with the Lenders that
deposits in dollars (in the applicable amount) are not being offered to each of
the Lenders in the relevant market for such Interest Period, the Administrative
Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the
2
Administrative Agent notifies the Borrower that the circumstances giving rise
to such situation no longer exist, the obligations of any affected Lender to
make its portion of such LIBOR Advances shall be suspended.
Section 10.2 Illegality. If after the date hereof, the adoption of
any Applicable Law, or any change in any Applicable Law (whether adopted before
or after the Agreement Date), or any change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender with any directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall make it unlawful or
impossible for any Lender to make, maintain or fund its portion of LIBOR
Advances, such Lender shall so notify the Administrative Agent, and the
Administrative Agent shall forthwith give notice thereof to the other Lenders
and the Borrower. Before giving any notice to the Administrative Agent pursuant
to this Section 10.2, such Lender shall designate a different lending office if
such designation will avoid the need for giving such notice and will not, in
the sole reasonable judgment of such Lender, be otherwise materially
disadvantageous to such Lender. Upon receipt of such notice, notwithstanding
anything contained in Article 2 hereof, the Borrower shall repay in full the
then outstanding principal amount of such Lender's portion of each affected
LIBOR Advance, together with accrued interest thereon, on either (a) the last
day of the then current Interest Period applicable to such affected LIBOR
Advances if such Lender may lawfully continue to maintain and fund its portion
of such LIBOR Advance to such day or (b) immediately if such Lender may not
lawfully continue to fund and maintain its portion of such affected LIBOR
Advances to such day. Concurrently with repaying such portion of each affected
LIBOR Advance, the Borrower may borrow a Base Rate Advance from such Lender,
whether or not it would have been entitled to effect such borrowing and such
Lender shall make such Advance, if so requested, in an amount such that the
outstanding principal amount of the affected Note held by such Lender shall
equal the outstanding principal amount of such Note or Notes immediately prior
to such repayment.
Section 10.3 Increased Costs.
(a) If after the date hereof, the adoption of any
Applicable Law, or any change in any Applicable Law (whether adopted before or
after the Agreement Date), or any interpretation or change in interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof or
compliance by any Lender with any directive (whether or not having the force of
law) of any such authority, central bank or comparable agency:
(i) shall subject any Lender to any tax, duty
or other charge with respect to its obligation to make its portion of LIBOR
Advances, or its portion of existing Advances, or shall change the basis of
taxation of payments to any Lender of the principal of or interest on its
portion of LIBOR Advances or in respect of any other amounts due under this
Agreement, in respect of its portion of LIBOR Advances or its obligation to
make its portion of LIBOR Advances (except for changes in the rate or method of
calculation of tax on the revenues or net income of such Lender); or
3
(ii) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System, but excluding any included in an applicable
LIBOR Reserve Percentage), special deposit, capital adequacy, assessment or
other requirement or condition against assets of, deposits with or for the
account of, or commitments or credit extended by, any Lender or shall impose on
any Lender or the London interbank borrowing market any other condition
affecting its obligation to make its portion of such LIBOR Advances or its
portion of existing Advances;
and the result of any of the foregoing is to increase the cost to such Lender
of making or maintaining any of its portion of LIBOR Advances, or to reduce the
amount of any sum received or receivable by such Lender under this Agreement or
under its Note with respect thereto, then, within ten (10) days after demand by
such Lender, the Borrower agrees to pay to such Lender such additional amount
or amounts as will compensate such Lender for such increased costs. Each Lender
will promptly notify the Borrower and the Administrative Agent of any event of
which it has knowledge, occurring after the date hereof, which will entitle
such Lender to compensation pursuant to this Section 10.3 and will designate a
different lending office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole reasonable judgment
of such Lender made in good faith, be otherwise disadvantageous to such Lender.
(b) Any Lender claiming compensation under this Section
10.3 shall provide the Borrower with a written certificate setting forth the
additional amount or amounts to be paid to it hereunder and calculations
therefor in reasonable detail. Such certificate shall be presumptively correct
absent manifest error. Notwithstanding the foregoing, the Borrower shall only
be obligated to compensate such Lender for any amount under this subsection
arising or occurring during (i) in the case of each such request for
compensation, any time or period commencing not more than ninety (90) days
prior to the date on which such Lender submits such request and (ii) any other
time or period during which, because of the unannounced retroactive application
of such law, regulation, interpretation, request or directive, such Lender
could not have known that the resulting reduction in return might arise. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods. If any Lender demands compensation under this Section
10.3, the Borrower may at any time, upon at least five (5) Business Days' prior
notice to such Lender, prepay in full such Lender's portion of the then
outstanding LIBOR Advances, together with accrued interest thereon to the date
of prepayment, along with any reimbursement required under Section 2.10 hereof.
Concurrently with prepaying such portion of LIBOR Advances the Borrower may,
whether or not then entitled to make such borrowing, borrow a Base Rate
Advance, or a LIBOR Advance not so affected, from such Lender, and such Lender
shall, if so requested, make such Advance in an amount such that the
outstanding principal amount of the affected Note or Notes held by such Lender
shall equal the outstanding principal amount of such Note or Notes immediately
prior to such prepayment.
Section 10.4 Effect On Other Advances. If notice has been given
pursuant to Section 10.1, 10.2 or 10.3 hereof suspending the obligation of any
Lender to make its portion of any type of LIBOR Advance, or requiring such
Lender's portion of LIBOR Advances to be repaid or prepaid, then, unless and
until such Lender notifies the Borrower that the circumstances giving rise to
such repayment no longer apply, all amounts which would otherwise be made by
such
4
Lender as its portion of LIBOR Advances shall, unless otherwise notified by the
Borrower, be made instead as Base Rate Advances.
Section 10.5 Claims for Increased Costs and Taxes. In the event
that any Lender shall decline to make LIBOR Advances pursuant to Sections 10.1
and 10.2 hereof or shall have notified the Borrower that it is entitled to
claim compensation pursuant to Section 10.3, 2.12 or 2.14(f) hereof or is
unable to complete the form required or subject to withholding as provided in
Section 2.13 hereof (each such lender being an "Affected Lender"), the Borrower
at its own cost and expense may designate a replacement lender (a "Replacement
Lender") to assume the Commitment and the obligations of any such Affected
Lender hereunder, and to purchase the outstanding Loans of such Affected Lender
and such Affected Lender's rights hereunder and with respect thereto, and
within ten (10) Business Days of such designation the Affected Lender shall (a)
sell to such Replacement Lender, without recourse upon, warranty by or expense
to such Affected Lender, by way of an Assignment and Assumption Agreement
substantially in the form of Exhibit A attached hereto, for a purchase price
equal to (unless such Lender agrees to a lesser amount) the outstanding
principal amount of the Loans of such Affected Lender, plus all interest
accrued and unpaid thereon and all other amounts owing to such Affected Lender
hereunder, and (b) assign the Commitment of such Affected Lender and upon such
assumption and purchase by the Replacement Lender, such Replacement Lender
shall be deemed to be a "Lender" for purposes of this Agreement and such
Affected Lender shall cease to be a "Lender" for purposes of this Agreement and
shall no longer have any obligations or rights hereunder (other than any
obligations or rights which according to this Agreement shall survive the
termination of the Commitment).
ARTICLE 11
Miscellaneous
Section 11.1 Notices.
(a) Except as otherwise expressly provided herein, all
notices and other communications under this Agreement and the other Loan
Documents (unless otherwise specifically stated therein) shall be in writing
and shall be deemed to have been given three (3) Business Days after deposit in
the mail, designated as certified mail, return receipt requested,
postage-prepaid, or one (1) Business Day after being entrusted to a reputable
commercial overnight delivery service for next day delivery, or when sent on a
Business Day prior to 5:00 p.m. (Charlotte, North Carolina time) by telecopy
addressed to the party to which such notice is directed at its address
determined as provided in this Section 11.1. All notices and other
communications under this Agreement shall be given to the parties hereto at the
following addresses:
(i) If to the Borrower, to it at:
Xxxx Television, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
0
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxx, Esq.
Telecopy: (000) 000-0000
(ii) If to the Administrative Agent, to it at:
Wachovia Bank, National Association
Xxxxxxxxx Xxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Wachovia Bank, National Association
Portfolio Management
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(iii) If to the Lenders, to them at the addresses
set forth on Schedule 1 hereto.
The failure to provide copies shall not affect the validity of the notice given
to the primary recipient.
(b) Any party hereto may change the address to which
notices shall be directed under this Section 11.1 by giving ten (10) days'
written notice of such change to the other parties.
Section 11.2 Expenses. The Borrower and its Subsidiaries will
promptly pay, or reimburse:
6
(a) all reasonable out-of-pocket expenses of the
Administrative Agent and the Co-Lead Arrangers in connection with the
preparation, negotiation, execution, delivery and administration of this
Agreement, the other Loan Documents and any amendment or waiver with respect
thereto, and the transactions contemplated hereunder and thereunder and the
making of the initial Advance hereunder (whether or not such Advance is made),
including, but not limited to, the reasonable fees and disbursements of counsel
for the Administrative Agent and the Co-Lead Arrangers and the costs and
expenses associated with the syndication of this facility; and
(b) all reasonable out-of-pocket costs and expenses of
the Administrative Agent and the Lenders of enforcement under this Agreement or
the other Loan Documents and all reasonable out-of-pocket costs and expenses of
collection if an Event of Default occurs in the payment of the Notes, which in
each case shall include reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent and the Lenders.
Section 11.3 Waivers. The rights and remedies of the
Administrative Agent and the Lenders under this Agreement and the other Loan
Documents shall be cumulative and not exclusive of any rights or remedies which
they would otherwise have. No failure or delay by the Administrative Agent, the
Required Lenders, or the Lenders, or any of them, in exercising any right,
shall operate as a waiver of such right. The Administrative Agent and the
Lenders expressly reserve the right to require strict compliance with the terms
of this Agreement in connection with any future funding of a Request for
Advance. In the event the Lenders decide to fund a Request for Advance at a
time when the Borrower is not in strict compliance with the terms of this
Agreement, such decision by the Lenders shall not be deemed to constitute an
undertaking by the Lenders to fund any further Request for Advance or preclude
the Lenders or the Administrative Agent from exercising any rights available
under the Loan Documents or at law or equity. Any waiver or indulgence granted
by the Administrative Agent, the Lenders, or the Required Lenders, shall not
constitute a modification of this Agreement or any other Loan Document, except
to the extent expressly provided in such waiver or indulgence, or constitute a
course of dealing at variance with the terms of this Agreement or any other
Loan Document such as to require further notice of their intent to require
strict adherence to the terms of this Agreement or any other Loan Document in
the future.
Section 11.4 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon the occurrence of an Event of Default and during the continuation thereof,
the Administrative Agent and each of the Lenders are hereby authorized by the
Borrower at any time or from time to time, without notice to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special, time or
demand, including, but not limited to, Indebtedness evidenced by certificates
of deposit, in each case whether matured or unmatured) and any other
Indebtedness at any time held or owing by any Lender or Administrative Agent,
to or for the credit or the account of the Borrower or any of its Subsidiaries,
against and on account of the obligations and liabilities of the Borrower to
the Lenders and the Administrative Agent, including, without limitation, all
Obligations and any other claims of any nature or description arising out of or
connected with this Agreement, the Notes or any other Loan Document,
irrespective of whether (a) any Lender or Administrative Agent shall have made
any demand hereunder or (b) any Lender or Administrative Agent shall
7
have declared the principal of and interest on the Loans and other amounts due
hereunder to be due and payable as permitted by Section 8.2 hereof and although
such obligations and liabilities or any of them shall be contingent or
unmatured. Upon direction by the Administrative Agent with the consent of all
of the Lenders each Lender holding deposits of the Borrower or any of its
Subsidiaries shall exercise its set-off rights as so directed.
Section 11.5 Assignment.
(a) The Borrower may not assign or transfer any of its
rights or obligations hereunder, under the Notes or under any other Loan
Document without the prior written consent of each Lender.
(b) Each Lender may, in the ordinary course of its
business and in accordance with Applicable Law, sell or assign to any Lender,
any Affiliate of a Lender or in the case of the Term Loans any Approved Fund
and with the consent of the Borrower (so long as no Default or Event of Default
has occurred and is continuing) and the consent of the Administrative Agent,
which consents shall not be unreasonably withheld or delayed, assign to one or
more other Eligible Assignees (any of the forgoing assignees or purchasers, a
"Purchasing Lender") all or a portion of its interests, rights and obligations
under this Agreement and the other Loan Documents (including, without
limitation, all or a portion of the Advances at the time owing to it and the
Notes held by it); provided that:
(i) each such assignment shall be of a
constant, and not a varying, percentage of the Revolving Loan Commitment and/or
the Term Loan Commitment, as applicable, of the assigning Lender's rights and
obligations under this Agreement;
(ii) if less than all of the assigning Lender's
Revolving Loan Commitment or Term Loan Commitment, as applicable, is to be
assigned, the Commitment so assigned shall not be less than $1,000,000.00 with
respect to the Revolving Loans and $1,000,000.00 with respect to the Term
Loans, unless (i) such sale or assignment is made to an existing Lender, to an
Affiliate thereof, or (with respect to any Term Loan) to an Approved Fund, in
which case no minimum amount shall apply or (ii) the Administrative Agent
consents in writing to a lesser amount;
(iii) the Purchasing Lender shall have delivered
to the Administrative Agent all United States Internal Revenue Service Forms
required pursuant to Section 2.13 and all of the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Assumption
Agreement, together with (to the extent requested by any Purchasing Lender) any
Note or Notes subject to such assignment;
(iv) no assignment of a Revolving Loan
Commitment, or participation in Letter of Credit Obligations shall be made
without the prior written consent of the Administrative Agent, the Issuing
Lender and (so long as no Default or Event of Default has occurred and is
continuing) the Borrower (which consents shall not be unreasonably withheld);
8
(v) where consent of the Borrower to an
assignment to a Purchasing Lender is required hereunder (including consent to
an assignment to an Approved Fund, if applicable with respect to a Revolving
Credit Commitment), the Borrower shall be deemed to have given its consent five
(5) Business Days after the date written notice thereof has been delivered by
the assigning Lender (through the Administrative Agent) unless such consent is
expressly refused by the Borrower prior to such fifth (5(th)) Business Day;
(vi) such assignment shall not, without the
consent of the Borrower, require the Borrower to file a registration statement
with the Securities and Exchange Commission or apply to or qualify the Loans or
the Notes under the blue sky laws of any state; and
(vii) the assigning Lender shall pay to the
Administrative Agent an assignment fee of $3,500.00 upon the execution by such
Lender of the Assignment and Assumption; provided that no such fee shall be
payable upon any assignment by a Lender to an Affiliate thereof (including any
affiliated Approved Funds that are funds managed by the same investment
advisor); and provided further that, in any case of contemporaneous assignments
by a Lender (including a group of affiliated Lenders that are funds managed by
the same investment advisor) to a single assignee or more than one fund managed
by the same investment advisor (which funds are not then Lenders hereunder),
only a single $3,500.00 fee shall be payable for all such contemporaneous
assignments.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Assumption, which effective
date shall be at least five (5) Business Days after the execution thereof
(unless otherwise agreed to by the Administrative Agent), (A) the Purchasing
Lender thereunder shall be a party hereto and, to the extent provided in such
Assignment and Assumption, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and
delivering an Assignment and Assumption, the assigning Lender thereunder and
the Purchasing Lender thereunder confirm to and agree with each other and the
other parties hereto as set forth in such Assignment and Assumption.
(d) Register. The Administrative Agent shall maintain a
copy of each Assignment and Assumption Agreement delivered to it and a register
for the recordation of the names, addresses and Revolving Loan Commitment
and/or Term Loan Commitment of the Lenders and the amount of the Advances with
respect to each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
9
(e) Issuance of New Notes. Upon its receipt of an
Assignment and Assumption Agreement executed by an assigning Lender and a
Purchasing Lender together with any Note or Notes (if applicable) subject to
such assignment and (if applicable) the written consent to such assignment, the
Administrative Agent shall, if such Assignment and Assumption Agreement has
been completed:
(i) accept such Assignment and Assumption;
(ii) record the information contained therein in
the Register;
(iii) give prompt notice thereof to the Borrower;
and
(iv) promptly deliver a copy of such Assignment
and Assumption Agreement to the Borrower.
Within five (5) Business Days after receipt of notice, the Borrower shall
execute and deliver to the Administrative Agent, in exchange for the
surrendered Note or Notes, a new Note or Notes to the order of such Purchasing
Lender (to the extent requested thereby) in amounts equal to the Revolving Loan
Commitment and/or Term Loan Commitment assumed by it pursuant to such
Assignment and Assumption Agreement and a new Note or Notes to the order of the
assigning Lender (to the extent requested thereby) in an amount equal to the
Revolving Loan Commitment and/or Term Loan Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated
the effective date of such Assignment and Assumption Agreement and shall
otherwise be in substantially the form of the assigned Notes delivered to the
assigning Lender. Each surrendered Note or Notes shall be canceled and returned
to the Borrower. Notwithstanding anything in this Agreement to the contrary,
any Lender which has not been issued a Note or Notes hereunder may at any time
deliver a written request for a Note or Notes to the Administrative Agent and
Borrower. Within five (5) Business Days after receipt of notice, the Borrower
shall execute and deliver to the Administrative Agent, a Note or Notes (as
applicable) to the order of such Lender in amounts equal to the Revolving Loan
Commitment and/or Term Loan Commitment of such Lender. Upon receipt thereby,
the Administrative Agent shall promptly deliver such Note or Notes to such
Lender.
(f) Participations. Each Lender may, without notice to
or the consent of the Borrower or the Administrative Agent, in the ordinary
course of its commercial banking business and in accordance with Applicable
Law, sell participations to one or more banks or other entities (any such bank
or other entity, a "Participant") in all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Advances and the Notes held by it); provided that:
(i) if less than all of the participating
Lender's Revolving Loan Commitment or Term Loan Commitment, as applicable, is
to be participated, each such participation shall be in an amount not less than
$1,000,000.00;
10
(ii) such Lender's obligations under this
Agreement (including, without limitation, its Revolving Loan Commitment and/or
Term Loan Commitment, as applicable) shall remain unchanged;
(iii) such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the
Notes held by it for all purposes of this Agreement;
(v) the Borrower, the Administrative Agent and
the other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement;
(vi) such Lender shall not permit such
Participant the right to approve any waivers, amendments or other modifications
to this Agreement or any other Loan Document other than waivers, amendments or
modifications which would reduce the principal of or the interest rate on any
Loan or the obligation of the Borrower to reimburse the Issuing Lender pursuant
to Section 2.14(d) for amounts drawn under the Letters of Credit, extend the
term or increase the amount of the Revolving Loan Commitment and/or Term Loan
Commitment of such Lender, reduce the amount of any fees to which such
Participant is entitled, extend any scheduled payment date for principal of any
Loan or, except as expressly contemplated hereby or thereby, release
substantially all of the Collateral; and
(vii) any such disposition shall not, without the
consent of the Borrower, require the Borrower to file a registration statement
with the Securities and Exchange Commission or apply to qualify the Loans or
the Notes under the blue sky law of any state.
The Borrower agrees that each Participant shall be entitled to the
benefits of Article 10 and Section 11.4 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section 11.5; provided that a Participant shall not be entitled to receive
any greater payment under Article 10 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent and such Participant shall have delivered to
the Administrative Agent all United States Internal Revenue Service Forms
required pursuant to Section 2.13.
(g) Disclosure of Information; Confidentiality. The
Administrative Agent and the Lenders shall hold all non-public information with
respect to the Borrower obtained pursuant to the Loan Documents (or any
Interest Rate Hedge Agreement with a Lender or the Administrative Agent) in
accordance with their customary procedures for handling confidential
information; provided, that the Administrative Agent may disclose information
relating to this Agreement to Gold Sheets and other similar bank trade
publications, such information to consist of deal terms and other information
customarily found in such publications and provided further, that the
Administrative Agent or any Lender may disclose any such information to the
extent such disclosure is (i) required by law or requested or required pursuant
to any legal process, (ii)
11
requested by, or required to be disclosed to, any rating agency, or regulatory
or similar authority (including, without limitation, the National Association
of Insurance Commissioners) or (iii) used in any suit, action or proceeding for
the purpose of defending itself, reducing its liability or protecting any of
its claims, rights, remedies or interests under or in connection with the Loan
Documents (or any Interest Rate Hedge Agreement with a Lender or the
Administrative Agent). Any Lender may, in connection with any assignment,
proposed assignment, participation or proposed participation pursuant to this
Section 11.5, disclose to the Purchasing Lender, proposed Purchasing Lender,
Participant, proposed Participant, or to any direct or indirect contractual
counterparty in swap agreements or such contractual counterparty's professional
advisor any information relating to the Borrower furnished to such Lender by or
on behalf of the Borrower; provided, that prior to any such disclosure, each
such Purchasing Lender, proposed Purchasing Lender, Participant or proposed
Participant, contractual counterparty or professional advisor shall agree to be
bound by the provisions of this Section 11.5(g).
(h) Certain Pledges or Assignments. Any Lender may at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement or any other Loan Document to secure obligations of
such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute such pledgee or assignee for such Lender as
a party hereto.
Section 11.6 Accounting Principles. All references in this
Agreement to GAAP shall be to such principles as in effect from time to time.
All accounting terms used herein without definition shall be used as defined
under GAAP. All references to the financial statements of the Borrower and to
its Total Debt, Senior Debt and Fixed Charges, and other such terms shall be
deemed to refer to such items of the Borrower and its Subsidiaries, on a fully
consolidated basis.
Section 11.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all such separate counterparts shall together constitute but one and the same
instrument.
Section 11.8 Governing Law. This Agreement, the Notes and the
other Loan Documents, unless otherwise expressly set forth therein, shall be
governed by, construed and enforced in accordance with the laws of the State of
Georgia applicable to agreements made to be performed in Georgia. If any action
or proceeding shall be brought by the Administrative Agent or any Lender
hereunder or under any other Loan Document in order to enforce any right or
remedy under this Agreement or under any Note or any other Loan Document, the
Borrower hereby consents and will, and the Borrower will cause each Subsidiary
to, submit to the jurisdiction of any state or federal court of competent
jurisdiction sitting within the area comprising the Northern District of
Georgia on the date of this Agreement. The Borrower, for itself and on behalf
of its Subsidiaries, hereby agrees that, to the extent permitted by Applicable
Law, service of the summons and complaint and all other process which may be
served in any such suit, action or proceeding may be effected by mailing by
registered mail a copy of such process to the offices of the Borrower at the
address given in Section 11.1 hereof and that personal service of process shall
not be required. Nothing herein shall be construed to prohibit service of
process by any other method permitted by law, or the bringing of any suit,
action or
12
proceeding in any other jurisdiction. The Borrower agrees that final judgment
in such suit, action or proceeding shall be conclusive and may be enforced in
any other jurisdiction by suit on the judgment or in any other manner provided
by Applicable Law.
Section 11.9 Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.10 Interest.
(a) In no event shall the amount of interest due or
payable hereunder or under the Notes exceed the maximum rate of interest
allowed by Applicable Law, and in the event any such payment is inadvertently
made by the Borrower or inadvertently received by the Administrative Agent or
any Lender, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the Administrative Agent or such Lender, in
writing, that it elects to have such excess sum returned forthwith. It is the
express intent hereof that the Borrower not pay and the Administrative Agent
and the Lenders not receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may legally be paid by the Borrower under
Applicable Law.
(b) Notwithstanding the use by the Lenders of the Base
Rate and the LIBOR as reference rates for the determination of interest on the
Loans, the Lenders shall be under no obligation to obtain funds from any
particular source in order to charge interest to the Borrower at interest rates
related to such reference rates.
Section 11.11 Table of Contents and Headings. The Table of Contents
and the headings of the various subdivisions used in this Agreement are for
convenience only and shall not in any way modify or amend any of the terms or
provisions hereof, nor be used in connection with the interpretation of any
provision hereof.
Section 11.12 Amendment and Waiver. Neither this Agreement nor any
term hereof may be amended orally, nor may any provision hereof be waived
orally but only by an instrument in writing signed by the Required Lenders and
the Administrative Agent at the direction of the Required Lenders and, in the
case of an amendment, by the Borrower, except that in the event of (a) any
increase in the amount of any Commitment or any increase in any Lender's
Commitment Ratio, (b) any waiver, delay, extension or extension in the terms or
events of repayment of the Loans or any mandatory reductions in either
Commitment provided in Sections 2.5 or 2.7(b) hereof, (c) any reduction in
principal, interest or fees due hereunder or postponement of the payment
thereof (including, without limitation, any postponement or extension of the
Maturity Date) without a corresponding payment by the Borrower (other than with
respect to the Default Rate as provided in Section 2.3(d) hereof), (d) any
release of any material portion of the Collateral for the Loans, except in
connection with a merger, sale or other disposition otherwise permitted
hereunder (in which case such release shall require no further approval by the
Lenders), (e) any waiver of any Default due to the failure by the Borrower to
pay any sum due to any of the Lenders hereunder, (f) any release of any
Guaranty of all or any
13
portion of the Obligations, except in connection with a merger, sale or other
disposition otherwise permitted hereunder (in which case, such release shall
require no further approval by the Lenders) or (g) any amendment of this
Section 11.12, the definition of Required Lenders or of any Section or
definition herein to the extent that such Section or definition requires action
by all Lenders, any such amendment or waiver or consent may be made only by an
instrument in writing signed by each of the Lenders and the Administrative
Agent and, in the case of an amendment, by the Borrower. Any amendment to
Section 2.9(d), Section 2.11 or Section 8.3 may be made only by an instrument
in writing signed by each of the Lenders affected thereby, the Administrative
Agent and the Borrower. Any amendment to any provision hereunder governing the
rights, obligations or liabilities of the Administrative Agent may be made only
by an instrument in writing signed by the Administrative Agent and by each of
the Lenders. No term or provision of any Security Document may be amended or
waived orally, but only by an instrument in writing signed by the
Administrative Agent with the direction of the Required Lenders and, in the
case of an amendment, by such of the Borrower and the Borrower's Subsidiaries
as are party thereto; provided, however, that the written consent of all of the
Lenders shall be required with respect to any amendment to or waiver of the
provisions of any Security Document which would have the effect of (i)
releasing any material portion of the Collateral for the Loans, other than in
connection with any merger, sale or other disposition otherwise permitted
hereunder (which shall require no further approval by the Lenders) or (ii)
releasing any Guarantor from all or any portion of the Obligations, except in
connection with a merger, sale or other disposition otherwise permitted
hereunder (in which case, such release shall require no further approval by the
Lenders). Notwithstanding anything in this Agreement to the contrary, no waiver
or modification of any provision of this Agreement that has the effect (either
immediately or at some later time) of enabling the Borrower to satisfy a
condition precedent to the making of a Revolving Loan shall be effective
against the Revolving Lenders for purposes of the Revolving Commitments unless
the Required Revolving Lenders shall have concurred with such waiver or
modification.
Section 11.13 Entire Agreement. Except as otherwise expressly
provided herein, this Agreement and the other documents described or
contemplated herein will embody the entire agreement and understanding among
the parties hereto and thereto and supersede all prior agreements and
understandings relating to the subject matter hereof and thereof.
Section 11.14 Other Relationships. No relationship created
hereunder or under any other Loan Document shall in any way affect the ability
of the Administrative Agent and each Lender to enter into or maintain business
relationships with the Borrower or any of its Affiliates beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 11.15 Directly or Indirectly. If any provision in this
Agreement refers to any action taken or to be taken by any Person, or which
such Person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such Person, whether or
not expressly specified in such provision.
Section 11.16 Reliance on and Survival of Various Provisions. All
covenants, agreements, statements, representations and warranties made herein
or in any certificate delivered pursuant hereto (a) shall be deemed to have
been relied upon by the Administrative
14
Agent and each of the Lenders notwithstanding any investigation heretofore or
hereafter made by them, and (b) shall survive the execution and delivery of the
Notes and shall continue in full force and effect so long as any Note is
outstanding and unpaid. Any right to indemnification hereunder, including,
without limitation, rights pursuant to Sections 2.10, 2.12, 2.14, 5.11, 10.3
and 11.2 hereof, shall survive the termination of this Agreement and the
payment and performance of all Obligations.
Section 11.17 Senior Debt. The Obligations are secured by the
Security Documents and are intended by the parties hereto to be in parity with
the Interest Rate Hedge Agreements and senior in right of payment to all other
Indebtedness of the Borrower.
Section 11.18 Obligations Several. The obligations of the
Administrative Agent and each of the Lenders hereunder are several, not joint.
Section 11.19 Survival of Indemnities. Notwithstanding any
termination of this Agreement, the indemnities to which the Administrative
Agent and the Lenders are entitled under the provisions of this Article XI and
any other provision of this Agreement and the other Loan Documents shall
continue in full force and effect and shall protect the Administrative Agent
and the Lenders against events arising after such termination as well as
before.
Section 11.20 Term of Agreement. This Agreement shall remain in
effect from the Agreement Date through and including the date upon which all
Obligations arising hereunder or under any other Loan Document shall have been
indefeasibly and irrevocably paid and satisfied in full and all Commitments
have been terminated. The Administrative Agent is hereby permitted to release
all Liens on the Collateral in favor of the Administrative Agent, for the
ratable benefit of itself and the Lenders, upon repayment of the outstanding
principal of and all accrued interest on the Loans, payment of all outstanding
fees and expenses hereunder and the termination of the Lender's Commitments
unless the Administrative Agent has received written notice prior to such
release from the holder of any Interest Rate Hedge Obligations that such
Interest Rate Hedge Obligation remains outstanding. No termination of this
Agreement shall affect the rights and obligations of the parties hereto arising
prior to such termination or in respect of any provision of this Agreement
which survives such termination.
Section 11.21 Advice of Counsel. Each of the parties represents to
each other party hereto that it has discussed this Agreement with its counsel.
Section 11.22 No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
Section 11.23 Amendment and Restatement; No Novation. This
Agreement constitutes an amendment and restatement of the Prior Loan Agreement
effective from and after the Agreement Date. The execution and delivery of this
Agreement shall not constitute a novation of any indebtedness or other
obligations owing to the Lenders or the Administrative Agent under
15
the Prior Loan Agreement based on any facts or events occurring or existing
prior to the execution and delivery of this Agreement. On the Agreement Date,
the credit facilities described in the Prior Loan Agreement shall be amended
and supplemented by the facilities described herein, and all loans and other
obligations of the Borrower outstanding as of such date under the Prior Loan
Agreement shall be deemed to be loans and obligations outstanding under the
corresponding facilities described herein, without further action by any
Person.
ARTICLE 12
Waiver of Jury Trial
Section 12.1 Waiver of Jury Trial. THE BORROWER, FOR ITSELF AND ON
BEHALF OF EACH OF ITS SUBSIDIARIES AND THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREBY AGREE, TO THE EXTENT PERMITTED BY LAW, TO WAIVE AND HEREBY WAIVE THE
RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY
TYPE IN WHICH THE BORROWER, ANY OF THE BORROWER'S SUBSIDIARIES, ANY OF THE
LENDERS, THE ADMINISTRATIVE AGENT OR ANY OF THEIR RESPECTIVE SUCCESSORS OR
ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY OR INDIRECTLY
OUT OF THIS AGREEMENT, ANY OF THE NOTES OR THE OTHER LOAN DOCUMENTS AND THE
RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION 12.1. EXCEPT AS PROHIBITED
BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION REFERRED TO IN THIS SECTION, ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. EACH PARTY TO THIS AGREEMENT (a) CERTIFIES THAT NEITHER ANY
REPRESENTATIVE, AGENT OR ATTORNEY OF THE ADMINISTRATIVE AGENT OR ANY LENDER HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR ANY
LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS AND (b) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION. THE PROVISIONS OF THIS SECTION HAVE
BEEN FULLY DISCLOSED BY AND TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT
TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY
OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER:
XXXX TELEVISION, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
-------------------------------
Title: President and Chief Operating
Officer
-------------------------------
[Signature Pages Continue]
ADMINISTRATIVE AGENT AND LENDER:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, as an Issuing Bank and as a
Lender
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------------------
Title: Director
-------------------------------------------
[Signature Pages Continue]
BANK OF AMERICA, N.A.,
as Syndication Agent, as an Issuing Bank and as a
Lender
By: /s/ Xxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxx X. Xxxx
----------------------------------------
Title: Senior Vice President
----------------------------------------
[Signature Pages Continue]
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Documentation Agent and as a Lender
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
-----------------------------
Title: Director
-----------------------------
